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Thread: Judge Throws Out Szymecki Constitutional Claims

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    From VCDL Alert, quoting Hampton, VA newspaper:

    "Chester "Chet" Szymecki Jr. of Yorktown sued the city after his arrest in June 2007 on a charge of violating a city ordinance prohibiting firearms at Harborfest, held annually at Town Point Park. Szymecki, a gun rights advocate, has challenged handgun bans in the past. During his arrest, Szymecki claims police pushed him and that when he complained that the handcuffs were on too tight, an officer made them tighter. . . .

    The charge was later thrown out after city officials learned that it violated a state law that prohibits localities from regulating firearms.

    Szymecki sued in federal court claiming multiple constitutional violations, including the Second Amendment's right to keep and bear arms and the Fourth Amendment prohibition against unlawful searches and seizures.

    U.S. District Judge Henry Coke Morgan Jr. ruled Thursday that Szymecki cannot sue claiming constitutional violations under state or local law. Morgan ruled earlier this year that the city did not violate the Second Amendment for the same reason.

    "It is well settled law in this circuit that the Second Amendment does not apply to the states," Morgan wrote in dismissing Szymecki's constitutional claims. "Because the Second Amendment does not apply to the states, neither a state law nor a local ordinance can run afoul of any right guaranteed by the Second Amendment."

    :shock::shock::shock::shock::shock:



    This is why I keep saying that so-called "conservative" federal judges are not friends to 2A. They will throw out Second Amendment and other Constitutional claims on specious procedural grounds.


    What we need are statesmenwho will appoint judges who will enforce the whole Constitution . . . . .




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    Can you cite authority to your assertion this federal judge is "conservative"? This only goes to show that we need incorporation of 2A by the Supreme Ct.

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    Judge Morgan is a George H.W. Bush appointee.Of course, Bush wasn'tthe best president for Second Amendment rights, exemplified by the 1989 import ban.

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    nakedshoplifter wrote:
    Can you cite authority to your assertion this federal judge is "conservative"?
    The law he is relying on is the product of conservative jurisprudence, in particular (I would guess) interpretation of the Eleventh Amendment. Incorporation of 2A requires a "liberal" reading of 14th Amendment Due Process. The 4th Amend. interpretation he probably is using is a product of the Renquist Court. . . .

    I hope someone will post a link to the decision so I can stop guessing though . . . .

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    Attached is the Court's decision.

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    . . . and here is the earlier decision.

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    The Donkey wrote:

    "It is well settled law in this circuit that the Second Amendment does not apply to the states," Morgan wrote in dismissing Szymecki's constitutional claims. "Because the Second Amendment does not apply to the states, neither a state law nor a local ordinance can run afoul of any right guaranteed by the Second Amendment."

    :shock::shock::shock::shock::shock:



    This is why I keep saying that so-called "conservative" federal judges are not friends to 2A. They will throw out Second Amendment and other Constitutional claims on specious procedural grounds.


    What we need are statesmenwho will appoint judges who will enforce the whole Constitution . . . . .


    Be careful Donkey. What you are arguing for is a kritarchy. It is dangerous to give judges the enforcement power that you believeis needed.

    Enforcement is the duty of the executive branch, not the judicial. For those that love freedom, that is a good reason to vote for an executive who pledges to govern using only the power afforded him or her in the constitution. Neither Nobama nor McPain seem to accept the limits that the Constitution places upon the President.

    What you get from super powerful liberal judges is a kritocracy. They will substitute their judgement for that of the framers of the constitution. The 2A and all other rights will be subject to the personal opinions of the judges,in short theywould be activist. Judicial activism is very corrosive to liberty.

    Interesting enough Donkey the statesman this Republic can count on to appoint judges who respect intentional divisions of power that the constitution requires,is not Nobama. It is:



    Please Donkey, Keep your kritocratic hands off of my Republic.


    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Sometimes I despair at the turn that OCDO seems to be taking, led by legions of ever more eXtreme Anony Mice. Then a stalwart old guard renews my respect. Thank you Thundar.

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    The Donkey wrote:
    Attached is the Court's decision.
    OK, THANKS DONKEY FOR THIS OPINION!

    First, I am glad that this opinion did keep the suit alive for the Section 7 Federal Privacy Act violation. But I am disappointed that Plaintiff did not cite to Greidinger v. Davis to support his Section 7 claim. In Greindinger, the 4th Circuit held generally that disseminating SSNs collected from voter registratns is an unconstitutioal invasion of privacy and right to vote. But importantly, at the end of the Greidinger ruling, the 4th Circuit said that Section 7 binds Virginia to provide meaningful Section 7(b) privacy warnings even though Virginia is grandfathered under Section 7 to be allowed to continue requiring SSN disclosure in voter registration (from those who have SSNs assigned to them).

    Second, as for the Judge's view that localities can pass whatever illegal ordinance they want and arrest people on them without violating the 4th Amendment, this issue shold be appealed and the trial can wait until this is resolved. If Norfolk appeals the Section 7 ruling, then Plaintiff can cross appeal on the 4th amendment issue. Alternatively, Plaintiff could request that the 4th Cir. certify the question of state law legality of the Norfolk ordinance to the Va. S. Ct.

    Third, the Second Amendment claim is not worth pursuing - a narrowly taylored gun carry ban at a discreet event is likley to be upheld even if the 4th Cir. reverses their holding precedent on incorporation.

    Fourth, regardless of the results of any appeal on the 4th Amendment claim, the Va. General Assembly should add an attornies fees provision to the Va. preemption statute to allow folks to bring actions in state court to declare every preempted ordiance invalid, one by one.

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    Mike:

    Agreed on points 1, 3, 4.

    But on point 2, the 4th Amendment right is not "clearly established" as amatter of law.Thus, the 4th Cir. will most likely rule that the damages claims are trumped by qualified immunity, and claims for equitable reliefunder the 4th Amend. are moot.

    Sorry Chet.


    Badfor the law too,becausethe appeals courtnever reaches the merits of the 4th Amend. claim.

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    The Donkey wrote:
    But on point 2, the 4th Amendment right is not "clearly established" as amatter of law.Thus, the 4th Cir. will most likely rule that the damages claims are trumped by qualified immunity, and claims for equitable reliefunder the 4th Amend. are moot.
    But, But, But, a "not clearly established" finding should be made by the trial court and qualified immunity may then attach but for Chet's case alone - future police violations would then be "clearly established" as unlawful.

    I don;t see how the 4th Cir. could jump to "not clearly established."

    This trial judge hasdrawn a brand new line in the sand against 1983 actions.

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    Mike wrote:
    The Donkey wrote:
    But on point 2, the 4th Amendment right is not "clearly established" as amatter of law.Thus, the 4th Cir. will most likely rule that the damages claims are trumped by qualified immunity, and claims for equitable reliefunder the 4th Amend. are moot.
    But, But, But, a "not clearly established" finding should be made by the trial court and qualified immunity may then attach but for Chet's case alone - future police violations would then be "clearly established" as unlawful.

    I don;t see how the 4th Cir. could jump to "not clearly established."

    This trial judge hasdrawn a brand new line in the sand against 1983 actions.
    Good point, Mike!

    The City of Newport does not yet appear to have raised a qualified immunity defense: the Court comes mighty close to recognizing one anywayon the 2nd amendment claims (see discussion of "retroactivity" and "well settled law" in the earlier decision p. 6, n.2.) but does not discussthe defenseon the 4th Amend.

    Even so, if the defenseis laterraised, the Courts could avoid ever reaching the merits: qualified immunity meansthe courtnever reaches the substance of the claims: a finding of "not clearly established" ends all discussion.

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    The Donkey wrote:
    Attached is the Court's decision.
    Thank you for providing that. The Second Amendment ruling is entirely expected. The Fourth Amendment ruling is a little troubling. If I understand the history of this geographic areacorrectly, there have been several illegal ordinances enacted. Some of them are enacted just for certain events, and the towns enact them knowing they are illegal.

    How can one challenge the ordinance in state court quickly enough (if one even knows about it) to make sure that 8 police officers do not gang up on him and begin manhandling him under the unlawful ordinance?

    A void law is no law at all.

    A Fourth Amendment lawsuit seems to be the way to handle it, but this distirct court opinion has basically given the green light to localities in that federal district to enact special little laws whenever they want to use them to harass people bearing arms, and to do so with utter and complete impunity. A locality's police officers can then manhandle the person, handcuff him, tighten the handcuffs to intentionally inflict pain, seize the person's property, and then, later, after the even is ended, quietly "drop the charges" that were never valid in the first place.

    According to the opinion, this conduct does not trample upon any constitutionally protected rights of a citizen of these United States.

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    Malum Prohibitum wrote:
    The Donkey wrote:
    Attached is the Court's decision.
    Thank you for providing that. The Second Amendment ruling is entirely expected. The Fourth Amendment ruling is a little troubling. If I understand the history of this geographic areacorrectly, there have been several illegal ordinances enacted. Some of them are enacted just for certain events, and the towns enact them knowing they are illegal.

    How can one challenge the ordinance in state court quickly enough (if one even knows about it) to make sure that 8 police officers do not gang up on him and begin manhandling him under the unlawful ordinance?

    A void law is no law at all.

    A Fourth Amendment lawsuit seems to be the way to handle it, but this distirct court opinion has basically given the green light to localities in that federal district to enact special little laws whenever they want to use them to harass people bearing arms, and to do so with utter and complete impunity. A locality's police officers can then manhandle the person, handcuff him, tighten the handcuffs to intentionally inflict pain, seize the person's property, and then, later, after the even is ended, quietly "drop the charges" that were never valid in the first place.

    According to the opinion, this conduct does not trample upon any constitutionally protected rights of a citizen of these United States.
    Right - this ruling is essentially a green light for torture under color of local ordinance free from review by federal tribunals.

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    I wonder if the ruling would have been the same had the town enacted a temporary ordinance stating "No speaking on political or religious topics or wearing shirts advocating political or religious messages, and no carrying Bibles, Qurans, religous books, tracts, or leafletsat the festival."

    If everything else had been the same, and leaving aside the First Amendment and the Second Amendment issues for the purposes of discussion, would the court's opinion have been the same on the Fourth Amendment issue?

    I doubt it.

    I think that the Judge's prejudice shows through when he noted that Chet "calmly explained" tothe police officers thathe was doing nothing illegal. Anybody else notice the judge put that in quotes?

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    The Donkey wrote:
    The City of Newport does not yet appear to have raised a qualified immunity defense
    It's the City of Norfolk.

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    Mike wrote:

    It's the City of Norfolk.
    OK, OK: that eye exam really ispast due!

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    The Donkey wrote:
    Szymecki sued in federal court claiming multiple constitutional violations, including the Second Amendment's right to keep and bear arms and the Fourth Amendment prohibition against unlawful searches and seizures.

    U.S. District Judge Henry Coke Morgan Jr. ruled Thursday that Szymecki cannot sue claiming constitutional violations under state or local law. Morgan ruled earlier this year that the city did not violate the Second Amendment for the same reason.
    I've just (re)read the Danbus posts and couldn't find a (similar) statement of his suit.

    Since Norfolk caved in Dan's case, and doesn't seem to be inclined to do so in Chet's case, is it because they fell they have a stronger defense? Or is it a different cause? This federal dismissal can't help.

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    Can you provide the link to the decisions in Dan's case, or some identifying info that would allow me to find them?

    Thanks,

    Donky

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    I wonder whether the settlement in Danbus's case had something to do with the racial aspect, and the possible resulting political embarrasment to the City that could have come if the case was pursued?

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    "It is well settled law in this circuit that the Second Amendment does not apply to the states," Morgan wrote in dismissing Szymecki's constitutional claims. "Because the Second Amendment does not apply to the states, neither a state law nor a local ordinance can run afoul of any right guaranteed by the Second Amendment."
    and until the appeals court for that circuit changes its mind, or the SC changes it for them, that is the correct ruling.

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    The Donkey wrote:
    Can you provide the link to the decisions in Dan's case, or some identifying info that would allow me to find them?

    Thanks,

    Donky
    Donkey:

    Try

    http://opencarry.mywowbb.com/view_to...ity+of+Norfolk

    You may be right about the racial component. But did both (threaten to) sue in Federal Court (4A violations), has has been strongly suggested on this site?

    Dan and Chet have the same attorney. Do both cases involve 4A rights?

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    I've checked the dockets and I can't find the case under Dan's name.

    Possibly never filed? I don't know. Many cases end before they are filed.

    It does appear from the discussion herein that Dan is under a confidentiality agreement of some kind.

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    I don't think Danbus ever actually filed because they settled before things got that far.

    I was curious about the similarities here, and after seeing Chet's 2A case dismissed, I began to wonder why Norfolk felt so threatened by Danbus. Or for that matter, why Chet felt confident enough to go forward. Didn't his lawyer know about the "well-settled" status of 2A?

    I wonder if Chet will pursue this in state court.

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    da7f2q8 wrote:
    But did both (threaten to) sue in Federal Court (4A violations), has has been strongly suggested on this site?

    Dan and Chet have the same attorney. Do both cases involve 4A rights?
    Did you read the opinion? Read it - you will see that the Fourth Amendment claim was raised and disposed of by the Judge as too far to reach in federal court because he would have to construe state law first.

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