Man jailed twice for 'offenses,' but cleared, released each time

A civil rights organization that argued for the U.S. Supreme Court's landmark ruling that the Second Amendment grants individuals the right to have weapons has filed a lawsuit against the state of California over a "vague" gun ban under which a man twice was jailed and cleared.

The Second Amendment Foundation says it took the action in federal court to challenge the constitutionality of the state's ban on what it calls "assault weapons."

The statute's definition of weapons, however, 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 Alan Gottlieb, executive vice president of SAF, "but to be arrested and jailed twice for the same offense is an outrage."

Read Wayne LaPierre's detailed explanations on "SAFE: How to Protect Yourself, Your Family and your Home"

Brendan Richards' dilemma, he said, "is a textbook example of why the California statute should be nullified."

Named as defendants in the filing are California Attorney General Kamala Harris, the state Justice Department, the Sonoma County sheriff's office and Deputy Greg Myers.

The Second Amendment Foundation is being joined in the challenge in U.S. District Court for the Northern District of California by the CalGuns Foundation as well as Richards, a discharged Marine and Iraq War veteran.

Richards was arrested and jailed in May 2010 and again in August 2011. Both times, charges eventually were dismissed when it was found that there was no violation of the law because the firearms in his possession were not "assault weapons" as the state defines those instruments.

Richards lost nonrefundable bail fees both times and suffered other damages, the SAF claim states. "He lost work due to his incarcerations. In both cases, the same Senior Criminalist John Yount issued reports that the firearms in Richards' possession were not assault weapons under California law," the foundation said.

"Mr. Richards now has a reasonable fear that his exercise of his fundamental Second Amendment rights will result in more wrongful arrests," the organization said.

"This nonsense has to stop," Gottlieb stated, "and the only way to ensure that is to show California's assault weapon statutes and regulations are unconstitutionally vague and ambiguous. Brendan Richards is not the only citizen faced with this kind of harassment under color of law."

The Second Amendment Foundation is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the constitutional right and heritage to privately own and possess firearms. Founded in 1974, the foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

In the precedent-setting Otis McDonald case challenging Chicago's gun restrictions, the U.S. Supreme Court declared the Second Amendment right to bear arms applies to individuals.

"The right to keep and bear arms must be regarded as a [substantial] guarantee, not a prohibition that could be ignored so long as the states legislated in an evenhanded manner," Justice Samuel Alito wrote in the majority opinion.

The decision followed the 2008 Heller case in the District of Columbia that declared the Second Amendment to be an individual right. That case, however, pertained only to D.C. The McDonald case established the precedent nationwide.

The foundation already has brought to court a number of other cases over local restrictions that it believes are precluded by the Supreme Court's rulings:

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 a 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.

It filed a claim against Maryland for a man who alleges the state is 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 now have refused to renew the permit, even though the intruder now lives some three miles from Woollard.

It 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.

The earliest case to result from the McDonald decision challenged a practice in North Carolina of banning guns during "emergencies." The case claimed state statutes forbidding the carrying of firearms or ammunition when officials declare "states of emergency" are unconstitutional. Further, the plaintiffs said a state law allowing the government to prohibit the sale, purchase and possession of firearms and ammunition is unconstitutional. WND reported when residents of King, N.C., were startled by the banishment of firearms during a "declared snow emergency."
The high court's 5-4 ruling in the first Chicago case was forecast to bring on such challenges.

It flipped "the burden onto the government and legislatures to show why they need to restrict what the court has already said is an individual right," John Velleco, director of federal affairs for Gun Owners of America, told WND after the decision.

There is other action on the state level regarding gun rights. Already, eight states have adopted laws that exempt guns made, sold and kept inside the states from any federal gun regulations.

A court case already is being heard over the effort in Montana – the first state to take the step of ordering federal regulators to stay out of the state business of regulating its citizenry's weapons.

In Wyoming, lawmakers even adopted a $2,000 penalty for federal agents trying to enforce federal regulations against an exempted weapon.

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