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Thread: GFSZ lawsuit. More information. Think the federal GFSZ law is unenforced? THink Again

  1. #1
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    GFSZ lawsuit. More information. Think the federal GFSZ law is unenforced? THink Again

    Pulling this information from a separate thread:

    Someone asked if the Federal GFSZ law has ever resulted in a conviction:

    From this thread:

    http://forum.opencarry.org/forums/sh...eded-in-church!

    I've been working with a guy outside of Wisconsin who has some legislative support from a U.S. Senator to overturn the Federal GFSZ law. That Senators support is contingent upon there being some political support which at this time, he doesn't believe there is.

    These are case citations that my contact has forwarded to me:

    Although the Supreme Court has not ruled on the enforceability of the
    revised Federal GFSZA; the Ninth Circuit Court of Appeals has. They
    specifically reviewed the changes made by Congress following the SCOTUS
    decision in United States v Lopez and they found the amended version to
    be constitutional in 2005.

    See United States v Dorsey.


    In 2007, the United States Court of Appeals for the First Circuit
    actually upheld a conviction for a gun that a woman had stored in her
    home. Her home just happened to be within 1000 feet of a school, and it
    happened to be excluded from the "private property" exception because
    it was part of a housing project.

    See United States v Belen Nieves-Castano
    http://www.lexisone.com/lx1/caselaw/...=y&l1loc=FCLOW

    Here are links to a few more federal convictions that were upheld under
    the current Federal GFSZA. I realize they're not dealing with the
    Wisconsin law, but I'm sure they would be useful if you ever get a
    chance to challenge the Federal GFSZA.

    United States v Danks (1999)

    United States v Tait (2000)

    United States v Haywood (2003)

    United States v Smith (2005)

    United States v Weekes (2007)

    United States v Benally (2007)

    United States v Cruz-Rodriguez (2008)

    ____________

    In addition I have a letter from the BATF that confirms that your NON-RESIDENT CCW PERMIT does not exempt you from the GFSZ unless you are in the state that issued it.

    So if you have a UTAH non-resident CCW permit, you are NOT exempted from the GFSZ when you CCW in any other state than Utah.

    There is significant pressure NOT to make this information public because it would upset the applecart, but most people don't know they are at risk of being convicted of a felony for the GFSZ statute when they carry with their non-resident permits in states other than that which issued the permit.

    Of course I'm sure all CCW permit holders trust the government to use its discretion and not prosecute you for something like that (sarcasm)
    _______________

    Here is some more information passed along to me from my out of state contact. Links to each case:

    Here are the updated links to the Federal GFSZA Convictions. I have been
    unable to locate the United States v Benally Case Again.

    United States v Danks
    (1999)http://openjurist.org/221/f3d/1037/u...v-jordan-danks

    United States v Tait (2000) (Attempted prosecution of an Alabama permit
    holder) http://openjurist.org/202/f3d/1320/united-states-v-tait

    United States v Haywood
    (2003)http://caselaw.findlaw.com/us-3rd-circuit/1270681.html

    United States v Dorsey (2005) (Upheld the revised law as constitutional)
    http://caselaw.findlaw.com/us-9th-circuit/1067767.html

    United States v Smith (2005)
    http://caselaw.findlaw.com/us-1st-circuit/1379992.html This case says
    that the mere movement of the gun's component parts in Interstate
    Commerce is enough to satisfy the jurisdictional element needed for
    conviction.

    United States v Nieves-Castaño (2007)
    http://openjurist.org/480/f3d/597/un...-nieves-castao A woman
    was convicted for having a gun in her home; which happened to be within
    1000ft of a school.

    United States v Weekes
    (2007)http://www.lexisone.com/lx1/caselaw/...=y&l1loc=FCLOW

    United States v Benally (2007) I have been unable to find an active link
    to this case.

    United States v Cruz-Rodriguez (2008)
    http://caselaw.findlaw.com/us-1st-circuit/1166100.html
    Attachment 3645Attachment 3646
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    Regular Member xenophon's Avatar
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    Good stuff, lots of gems here. Thanks for the research.

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    Regular Member jamesisel's Avatar
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    Does anyone know, on what authority does the BATF get to decide whether or not an out of state permit with reciprocity qualifies as being "licensed by the state"?.....My personal opinion is that they don't have the authority.

    The wording of the GFSZA really troubles me. Because of the wording, I think if it went to court it could go either way........... but I am not willing to drive across the country unarmed...hope my Tennessee permit holds up.

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    Great compilation. Thanks for your research.

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    Quote Originally Posted by jamesisel View Post
    Does anyone know, on what authority does the BATF get to decide whether or not an out of state permit with reciprocity qualifies as being "licensed by the state"?.....My personal opinion is that they don't have the authority.
    Well, of course they don't. And their usual official line is to say that all matters requiring an interpretation of federal law should be directed to the Attorney General.

    They don't even have enforcement authority over GFSZA, so their opinion doesn't matter.

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    Excellent information. Thanks.

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    Quote Originally Posted by jamesisel View Post
    Does anyone know, on what authority does the BATF get to decide whether or not an out of state permit with reciprocity qualifies as being "licensed by the state"?.....My personal opinion is that they don't have the authority.

    The wording of the GFSZA really troubles me. Because of the wording, I think if it went to court it could go either way........... but I am not willing to drive across the country unarmed...hope my Tennessee permit holds up.
    Their "authority" is written in the law. The exemptions to the ban include:

    "Subparagraph (A) shall does not apply to the
    possession of a firearm—
    (i) on private property not part of school grounds;
    (ii) if the individual possessing the firearm is licensed to
    do so by the State in which the school zone is located
    or a political subdivision of the State, and the law of
    the State or political subdivision requires that, before
    an individual obtains such a license, the law enforcement authorities of the State or political
    subdivision verify that the individual is qualified
    under law to receive the license;"

    So, unless you are licensed in the state in which the school zone is located, you can not carry in a school zone.
    Last edited by Yooper; 08-21-2010 at 02:54 AM.

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    State Researcher lockman's Avatar
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    GFSZ arrests

    Are there any arrests under the current federal GFSZ act in which the defendants are not felons or otherwise engaged in other felony criminal acts?

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    Regular Member jamesisel's Avatar
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    Quote Originally Posted by Yooper View Post
    Their "authority" is written in the law. The exemptions to the ban include:

    "Subparagraph (A) shall does not apply to the
    possession of a firearm—
    (i) on private property not part of school grounds;
    (ii) if the individual possessing the firearm is licensed to
    do so by the State in which the school zone is located
    or a political subdivision of the State, and the law of
    the State or political subdivision requires that, before
    an individual obtains such a license, the law enforcement authorities of the State or political
    subdivision verify that the individual is qualified
    under law to receive the license;"

    So, unless you are licensed in the state in which the school zone is located, you can not carry in a school zone.
    I have some questions.

    I have a Tennessee Handgun Carry PERMIT. So, even when I'm in Tennessee, I cannot legally carry in a school zone because the state calls it a PERMIT and not a license?

    LICENSE
    1 a : permission to act b : freedom of action
    2 a : a permission granted by competent authority to engage in a business or occupation or in an activity otherwise unlawful b : a document, plate, or tag evidencing a license granted c : a grant by the holder of a copyright or patent to another of any of the rights embodied in the copyright or patent short of an assignment of all rights


    --The definition in 1a supports the argument that if am in say, Kentucky, and I have a Tennessee permit, and Kentucky has reciprocity with Tennessee, then Kentucky has given me permission to act. I have been licensed by Kentucky.

    --The definition in 2b supports the argument that I must have document issued to me by the state of the GFSZ I am in.

    But....

    Some states have written reciprocity agreements and some states informally recognize out of state permits.
    So If there is a written agreement between the states, couldn't it satisfy the requirement of the definition in 2b?

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    Regular Member Yooper's Avatar
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    Quote Originally Posted by jamesisel View Post
    I have some questions.

    I have a Tennessee Handgun Carry PERMIT. So, even when I'm in Tennessee, I cannot legally carry in a school zone because the state calls it a PERMIT and not a license?

    LICENSE
    1 a : permission to act b : freedom of action
    2 a : a permission granted by competent authority to engage in a business or occupation or in an activity otherwise unlawful b : a document, plate, or tag evidencing a license granted c : a grant by the holder of a copyright or patent to another of any of the rights embodied in the copyright or patent short of an assignment of all rights


    --The definition in 1a supports the argument that if am in say, Kentucky, and I have a Tennessee permit, and Kentucky has reciprocity with Tennessee, then Kentucky has given me permission to act. I have been licensed by Kentucky.

    --The definition in 2b supports the argument that I must have document issued to me by the state of the GFSZ I am in.

    But....

    Some states have written reciprocity agreements and some states informally recognize out of state permits.
    So If there is a written agreement between the states, couldn't it satisfy the requirement of the definition in 2b?
    No, because the license was not issued BY the state, even though it is formally recognized by it. Keep in mind, this doesn't just apply to carry permits. Here in MI we have a "Permit to Purchase" for handguns, which the state (local LEO) does a background check, and then we have to get the pistol registered. Due to the Permit to Purchase, we are exempt from the GFSZA whether or not we have a CPL. Illinois, with their FOID cards, would also be exempt from the GFSZA, even though they don't have a carry permit.

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    Regular Member jamesisel's Avatar
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    Quote Originally Posted by Yooper View Post
    No, because the license was not issued BY the state, even though it is formally recognized by it. Keep in mind, this doesn't just apply to carry permits. Here in MI we have a "Permit to Purchase" for handguns, which the state (local LEO) does a background check, and then we have to get the pistol registered. Due to the Permit to Purchase, we are exempt from the GFSZA whether or not we have a CPL. Illinois, with their FOID cards, would also be exempt from the GFSZA, even though they don't have a carry permit.
    The word ISSUED is not in the law.

    If it were then I would agree that the law was referring to an actual document.

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    Quote Originally Posted by jamesisel View Post
    Does anyone know, on what authority does the BATF get to decide whether or not an out of state permit with reciprocity qualifies as being "licensed by the state"?.....My personal opinion is that they don't have the authority.
    I take the advce of what JPFO says: "boot the BATF". It is the greatest example of law enforcement overstepping its bounds.

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    Gun Free School Zones are UnConstitutional!

    Furthermore, many States do not enforce the 1000-foot provisions of Federal Law as applied to them.

    My State, Georgia, recently revised 16-11-127.1 to exclude the 1000-foot provsions..., as they once applied.

    Also, in accordance with Federal Law 18 U.S.C. 922(q)(2)(b)(2), GFSZ's do not apply to Firearm License Holders of The State wherein they are found, provided; the State the School is in The State that issued them.

    Wisconsin, however, does not have any Firearm Licenses for Citizens, as 48 other States have.

    This Violates The United States Constitution in two ways: 1. Congress should reconize and give 'Full Faith and Credit' to the Acts of every State against every other State in the Field of Firearms Licenses (a Federal Law that would have specifically have done such failed in the last year or so by..., I believe..., 2 or 3 Votes), AND 2. Having a Firearm in The Home has been ruled a Constitutional Right by both Heller and McDonald in The Supreme Court of The United States of America, under The Robert Court.

    No one should be Arrested for merely having a Firearm within a 1000 feet of a School, K-12, and only three States that I know of actually enforce this Law..., those States are: 1. California, 2. Florida, and 3. (drum role please!) Wisconsin.

    In every other State..., you actually have to be on The School Property itself with a Firearm, or actually in The School Building itself with a Firearm, to earn a Conviction.

    Furthermore..., as it is obvious..., No Man can exercise His Right to Keep and Bear Arms if He has to continue to owrry about whether or not He is within 1000 feet of a School K-12. This is something that is discerable, and it is BLANATLY UNCONSTITUTIONAL!

    I support Wisconsin's Law-abiding Citizens efforts to remove this restriction, as currently imposed under Wisconsin Law.
    Last edited by aadvark; 08-22-2010 at 04:02 PM.

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    Always read the case law...

    Quote Originally Posted by Yooper View Post
    Their "authority" is written in the law. The exemptions to the ban include:

    "Subparagraph (A) shall does not apply to the
    possession of a firearm—
    (i) on private property not part of school grounds;
    (ii) if the individual possessing the firearm is licensed to
    do so by the State in which the school zone is located
    or a political subdivision of the State, and the law of
    the State or political subdivision requires that, before
    an individual obtains such a license, the law enforcement authorities of the State or political
    subdivision verify that the individual is qualified
    under law to receive the license;"

    So, unless you are licensed in the state in which the school zone is located, you can not carry in a school zone.
    The Federal prosecutor made a similar argument in 202 F. 3d 1320 - United States v. Tait which was rejected.

    Quoting the court
    The government first argues that Alabama licenses never qualify for the exception in 922(q)(2)(B)(ii) because Alabama does not require its licensing agents to conduct background checks on firearms license applicants. The 922(q)(2)(B)(ii) exception only applies if "... the law of the State ... requires that ... [the sheriff] verify that the individual is qualified under law to receive the license." 18 U.S.C. 922(q)(2)(B)(ii). By its basic terms, the statute merely requires that the Alabama sheriff ensured that Tait was qualified under Alabama law to receive the license. While the Alabama law is extremely lenient, it is nonetheless the only pertinent law. Alabama has chosen its laws, and these are the laws which determine whether the federal statute's exception applies. See Caron v. United States, 524 U.S. 308, 118 S.Ct. at 2011-12, 141 L.Ed.2d 303.6 Alabama is free to set forth its own licensing requirements, and Congress chose to defer to those licensing requirements when it established "qualified under law" as its criterion for the exception to the Gun-Free School Zone Act. Therefore the government's first argument with respect to 922(q)(2)(B)(ii) is rejected.
    What a statue says and what the courts say a statute says are often two very different things. If you visit in a state in the 11th Circuit and that state says your out of state CCW is valid in their state, you're reasonably safe; the Court has left that up to the states.

    I do not know of any other Circuit Court that has a contrary finding. I've looked but have not found one. If you know of one, please share.
    Last edited by CNReporter; 08-24-2010 at 08:04 AM. Reason: "reasonably safe" is a more accurate description than "safe"

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    Thank you for the learned comment on point! Unfortunately, we, despite pretensions to the contrary, are not lawyers by and large.

    Welcome to OCDO and OCDO-WI.

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    There is a Bill under The 111st Federal Congress called The Citizens Second Amendment Restoration Act that specifically, by its own terms, REPEALS 18 U.S.C. 922(q)!

    The Bill is: HR 3021 IH, sponsered by Rep. Ron Paul of TX-14.

    I do not know if it even made it out of Commitee, however.

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    http://www.govtrack.us/congress/bill.xpd?bill=h111-3021
    6/24/2009--Introduced.
    Citizens Protection Act of 2009 - Repeals provisions of the federal criminal code that prohibit the possession of a firearm in a school zone.
    A BILL

    To repeal the Gun-Free School Zones Act of 1990 and amendments to that Act.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Citizens Protection Act of 2009’.

    SEC. 2. REPEAL OF THE GUN-FREE SCHOOL ZONES ACT OF 1990 AND AMENDMENTS TO THAT ACT.

    (a) In General- Section 922 of title 18, United States Code, is amended by striking subsection (q).

    (b) Related Amendments-

    (1) Section 921(a) of such title is amended by striking paragraphs (25) through (27) and redesignating paragraphs (28), (29), and (32) through (35) as paragraphs (25) through (30), respectively.

    (2) Section 924(a) of such title is amended--

    (A) in paragraph (1)(B), by striking ‘(k), or (q)’ and inserting ‘or (k)’; and

    (B) by striking paragraph (4) and redesignating paragraphs (5) through (7) as paragraphs (4) through (6), respectively.

    (3) The Gun-Free School Zones Act of 1990 (18 U.S.C. 921 note, 922 note; section 1702 of Public Law 101-647; 104 Stat. 4844-4845) is repealed.
    Last edited by Doug Huffman; 08-23-2010 at 12:17 PM.

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    Campaign Veteran Flipper's Avatar
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    Quote Originally Posted by aadvark View Post
    There is a Bill under The 111st Federal Congress called The Citizens Second Amendment Restoration Act that specifically, by its own terms, REPEALS 18 U.S.C. 922(q)!

    The Bill is: HR 3021 IH, sponsered by Rep. Ron Paul of TX-14.

    I do not know if it even made it out of Commitee, however.
    I emailed Wisconsin's very own expert on 2nd Admendment constitutional issues, Russ Feingold, and ask him if he support repeal of 18 U.S.C. 922(q) as proposed by HR 3021 IH, and if not, why.

    Message:

    As a supporter of the 2nd Admendment right of individuals to bear arms to protect themselves and their families and as an expert on the 2nd Admendment, would Senator Feingold sponsor legislation similar to HR 3021 IH, sponsored by Rep. Ron Paul, to repeal the "Gun Free School Zone Act" which presently under court challenge in Wisconsin. If not, why not. Please don't answer with "the court should decide this issue, not congress."

    Thank you

    Others welcomed to do the same.

    http://www.russfeingold.org/contact/
    Last edited by Flipper; 08-23-2010 at 01:08 PM.

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    Introduction to Legal Research

    Quote Originally Posted by Doug Huffman View Post
    Thank you for the learned comment on point! Unfortunately, we, despite pretensions to the contrary, are not lawyers by and large.

    Welcome to OCDO and OCDO-WI.
    I am not an attorney. Well there is that 14 month long lawsuit I won acting pro per/se but that is another story.

    I have taken a few more law courses than were required to obtain my MBA but there is a misconception about lawyers. Lawyers are experts in arguing a case. They are not experts in the law.

    The grunt work is done by paralegals who pour through annotated code sections and case law, prepare complaints, motions, memorandums, counter-memorandums, counter-counter memorandums (no, really), etc. Well, it used to be grunt work, today everything is electronic so what used to take days to research and prepare now takes a couple of hours.

    Having the facts and the law on your side, despite what you see on TV or in the movies is irrelevant. Cases are won or lost on procedure and that is where the lawyer comes in. That and being able to convince a jury that black is white and up is down.

    When I said "you're safe" that was probably too strong a phrase. There is always a Federal prosecutor with far too much free time on his hands. However, the language of the decision was fairly strong. Short of a prosecutor wanting his 15 minutes of fame, my reading of the opinion is that one is reasonably safe.

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    Thank you! Mr Chairman

    By the way, thank you Mr Chairman for your initial posting. It prompted me to look up the case law in my state, California.

    Much to my surprise I discovered only a single challenge to our state gun free school zone on 14th Amendment grounds and, much to my joy, I discovered the standard the appellate court used to uphold the law was specifically rejected by the US Supreme Court.

    An added bonus was the California courts finding the law "reasonable" because of public safety. An argument rejected by the US Supreme Court in both Heller and McDonald.

    If interested, or if you have trouble sleeping, you can read the 1,600 word version of the above here.

    Pretty much everyone out here in the 9th District is awaiting the Nordyke v King decision. All the briefs are in. We are just waiting for the court to decide if it is going to have a hearing or go straight to the opinion.

    Because this case has been going on for eleven years, if Nordyke wins he's looking at winning a judgment in the tens of millions of dollars. Similarly, if the Nordyke decision reads like the Heller decision, it isn't just the California Gun Free School Zone that will be challenged but the 1967 ban on loaded Open Carry and a suitcase full of other California gun control laws.

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    aadvark, et all:

    If you want to read the status of all gongressional bills go to:

    http://www.govtrack.us

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