kwikrnu files writ of mandate against republican anti-gun sheriff

kwikrnu · Oct 16, 2010

I filed a writ of mandamus against the sheriff who recently helped ban guns in our Williamson County Park system. TCA 39-17-1361 requires the sheriff execute all national firearms documents if applicant is not prohibited. I am not prohibited. I filed in Williamson County Chancery Court on 9-20-10. Their motion to dismiss will be heard on Octoner 18, 2010. Case # 38930.

HvyMtl · Oct 17, 2010

"the sheriff execute all national firearms documents if applicant is not prohibited. I am not prohibited."

What document did he not execute?

kwikrnu · Oct 17, 2010

HvyMtl said:
"the sheriff execute all national firearms documents if applicant is not prohibited. I am not prohibited."

What document did he not execute?

Form 4

HvyMtl · Oct 17, 2010

Form 4? For clarification, that is where you are applying to allow ownership of a silencer, right?

How did he not perform?

kwikrnu · Oct 17, 2010

HvyMtl said:
Form 4? For clarification, that is where you are applying to allow ownership of a silencer, right?

How did he not perform?

The ATf considers execution of the Form 4 to mean ceritfication of the document.

The Tennessee Legislature requires the execution of the document.

The sheriff did not execute the document.

Writ of mandamus

Answer

Motion to dismiss

HvyMtl · Oct 17, 2010

Ah, so you were applying for the privilege to own a silencer, under fed law.

And the Sheriff modified the document by crossing out a section and initialing it. Specifically the "I have no information indicating that the transferee will use the firearm or device described on this application for other than lawful purposes" section. And due to this modification, I assume the form was denied.

Has the Sheriff indicated the reason behind the modification of the document? What information does he claim to have you "will" violate the law?

Hmm. They may have a point on the law being vague on what execution is... He executed it, but modified the document. You are arguing this is not an execution, and the Sheriff claims it is...

Do you have an attorney representing you in this action?

kwikrnu · Oct 17, 2010

HvyMtl said:
Ah, so you were applying for the privilege to own a silencer, under fed law.

And the Sheriff modified the document by crossing out a section and initialing it. Specifically the "I have no information indicating that the transferee will use the firearm or device described on this application for other than lawful purposes." And due to this modification, I assume the form was denied.

Has the Sheriff indicated the reason behind the modification of the document? What information does he claim to have you "will" violate the law?

The NFA isn't going away anytime soon, and I have my plate full with fighting to carry a gun. The sheriff has no reason beyond that my permit was suspended, but the permit wasn't suspended until 12 days after he gave me back the form.

This may turn out to be a good 10th amendment case.

KBCraig · Oct 18, 2010

Since ownership of a silencer isn't illegal, and only requires registration of the particular device along with payment of the required tax, the sheriff's refusal is the same as if he shut down alcohol and tobacco sales by refusing to collect the tax.

kwikrnu · Oct 18, 2010

KBCraig said:
Since ownership of a silencer isn't illegal, and only requires registration of the particular device along with payment of the required tax, the sheriff's refusal is the same as if he shut down alcohol and tobacco sales by refusing to collect the tax.

Yes.

kwikrnu · Oct 18, 2010

The sheriff prevailed on the motion to dismiss.

AUDIO

Kingfish · Oct 18, 2010

Short version:
Attorney for the Sheriff argued that the Sheriff did execute the form and the judge agreed.

HvyMtl · Oct 18, 2010

Sorta, yes, Kingfish.

The sheriff signed the form, which is, basically, all he has to do under law. The sheriff is also supposed to inform BATFE of any issues which may impact the legal use of the items. Kwik, also, has not gone through the list of accepted CLEO of the BATFE to sign the form. Which does not allow him to get the writ, as there are other alternatives to Kwik to get the Form signed, or to get the relief he wants...

In addition, the Court points to the decision as the BATFE's, not the sheriff's, and the sheriff can put all info pertinent to the BATFE decision on the document. And the Court does not have the authority to deal with the BATFE. That would be federal court.

Kwik, I believe you were representing yourself, which, IMHO, is unwise, even if you have a law degree. This should be a learning experience, which shows you need to have proper representation, as you do not have experience in interpreting and arguing the law, like a licensed attorney has.

Honestly, the Judge was quite kind to you. He could have been much harsher in his opinion of you, your case, and your self-representing.

I wonder what information the Sheriff is pointing to as to the reason he crossed out the sentence where Kwik would lawfully mis-use the item...

kwikrnu · Oct 18, 2010

HvyMtl said:
Sorta, yes, Kingfish.

The sheriff signed the form, which is, basically, all he has to do under law. The sheriff is also supposed to inform BATFE of any issues which may impact the legal use of the items. Kwik, also, has not gone through the list of accepted CLEO of the BATFE to sign the form. Which does not allow him to get the writ, as there are other alternatives to Kwik to get the Form signed, or to get the relief he wants...

In addition, the Court points to the decision as the BATFE's, not the sheriff's, and the sheriff can put all info pertinent to the BATFE decision on the document. And the Court does not have the authority to deal with the BATFE. That would be federal court.

Kwik, I believe you were representing yourself, which, IMHO, is unwise, even if you have a law degree. This should be a learning experience, which shows you need to have proper representation, as you do not have experience in interpreting and arguing the law, like a licensed attorney has.

Honestly, the Judge was quite kind to you. He could have been much harsher in his opinion of you, your case, and your self-representing.

I wonder what information the Sheriff is pointing to as to the reason he crossed out the sentence where Kwik would lawfully mis-use the item...

There is no State requirement to ask anyone to sign other than the CLEO. There is no federal law which require CLEO execution. There is no law which prohibits State from making the execution a non-discretionary function.

State and federal law is seperate. States do not tell the feds what to do and the feds don't tell the states what to do. That is basic 10th amendment. This is a State issue.It is a state law. Which is why I brought the action in state court.

I don't care about words from the judge. I only care about the decision. The room was full of attorneys and they all said I did a good job. The brief is the important part of this, not oral arguments. Everything I said in the room was already in my brief.

HvyMtl · Oct 18, 2010

Problem is, you did not do a good enough job, you lost...

In this situation, you needed to disprove key items given by the other attorney.

You did not disprove the the list of other officers you can send your request to is invalid, making it, automatically valid. Which shows you did not follow other avenues of relief, which automatically kills this type of writ.

You did not disprove the sheriff has the right to adjust the document, also kills the writ.

You did not disprove the sheriff did execute the document, which makes your writ moot.

3 strikes. Any one of the three would kill your writ, and therefore you lost.

But, had you gone with an attorney, they would have advised you of the issues with your case, and you would either 1) not filed or 2) filed something completely different, and would have had more chances of success...

Have you learned what the Sheriff is pointing to as the reason he crossed that sentence out? What is the "reason" he is claiming you should not get the silencer?

kwikrnu · Oct 18, 2010

HvyMtl said:
Problem is, you did not do a good enough job, you lost...

In this situation, you needed to disprove key items given by the other attorney.

You did not disprove the the list of other officers you can send your request to is invalid, making it, automatically valid. Which shows you did not follow other avenues of relief, which automatically kills this type of writ.

You did not disprove the sheriff has the right to adjust the document, also kills the writ.

You did not disprove the sheriff did execute the document, which makes your writ moot.

3 strikes. One of which would kill your writ, and therefore you lost.

But, had you gone with an attorney, they would have advised you of the issues with your case, and you would either 1) not filed or 2) filed something completely different, and would have had more chances of success...

I went over all of that in my brief. He said he read my brief. He dismissed my case on a motion to dismiss. There were no interrogatories or depositions. He is supposed to take into account everything and favor the non-moving party. Basically what he said was that by crossing out lines on the document the sheriff expressed his opinion. I'd like to see him force someone to execute a document and that someone cross out key wording on the document.

HvyMtl · Oct 18, 2010

Yes, he stated the Sheriff had the right to cross out the writing of the forum.

You did not prove this viewpoint incorrect. This, plus several other reasons, is why you lost.

You had to prove, or at least get the judge to agree, the Sheriff did not act correctly by crossing out items on the document. But, from the audio of the motion to dismiss, you did not argue against this viewpoint.

Did you argue against it in the brief? IF so, how?

And do you yet know the "why" behind the Sheriff modifying the document?

McX · Oct 18, 2010

nice cat picture, but it looks like he's leaning a bit to the left- so to speak. so kwick, haven't been in here to see you in awhile, still, i see they are dedicating threads to you even today. Still ain't got my kwick pic, much bashing goin on? life ok for you my friend?
things got kinda nasty for me up here, got to be one of the infamous madison 5. I'll be doing autographs on oprah, and dr. phil for extra cash.

kwikrnu · Oct 18, 2010

HvyMtl said:
Yes, he stated the Sheriff had the right to cross out the writing of the forum.

You did not prove this viewpoint incorrect. This, plus several other reasons, is why you lost.

You had to prove, or at least get the judge to agree, the Sheriff did not act correctly by crossing out items on the document. But, from the audio of the motion to dismiss, you did not argue against this viewpoint.

Did you argue against it in the brief? IF so, how?

And do you yet know the "why" behind the Sheriff modifying the document?

That was covered in the brief. There is no reason "why".

This is good listening regarding the law, it is the legislative history

Link

kwikrnu · Oct 18, 2010

McX said:
nice cat picture, but it looks like he's leaning a bit to the left- so to speak. so kwick, haven't been in here to see you in awhile, still, i see they are dedicating threads to you even today. Still ain't got my kwick pic, much bashing goin on? life ok for you my friend?
things got kinda nasty for me up here, got to be one of the infamous madison 5. I'll be doing autographs on oprah, and dr. phil for extra cash.

I read about that. Good luck! You probably have your hands full. Were you one of the two who refused to ID?

HvyMtl · Oct 18, 2010

Well, that is not nice of the sheriff, I would like for him to give you a reason why he altered the document. Specifically, why he believes you would violate the law with a silencer?

Legislative intent is nice, but, in most cases, not persuasive enough. I bet there were no cases on point, though...

AS for McX, lol, no - apparently you do not get the gist of the picture. And, so far, no one has been bashing Kwik, or really bashing each other, like in the past... Hope the conversations continue without bashing. How about you McX? You sound like you got a mess of trouble on your hands. Going to follow it a bit more, now... Best of luck with it...

And I still say, Kwik, I wish you had a professional with you when you went into court, it may have fallen out a bit differently.

It is like saying, "No worries Doc, I got a saw, screwdriver, a 2 by 4, and a hammer, I'll take care of my broken arm..."

May I suggest a course of action? How about resending the form to another CLEO, and see if you can get your form 4. Bypass the sheriff, then politely let him know you have the item in question. Show his little power trip was to no avail...

kwikrnu files writ of mandate against republican anti-gun sheriff

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