Kolbe v. O’Malley — Amicus brief

Michael Harless Firearms Law, U. S. Court of Appeals, Fourth Circuit

Ever since the U.S. Supreme Court determined that the Second Amendment protected every citizen’s right to “keep and bear arms” in its 2008 Heller decision, lower federal courts have sought to evade the application of that rule. That pattern is now continuing in Maryland where a district judge has upheld the Maryland 2013 Firearms Safety Act (“Act”) which bans (i) so-called “assault weapons” and (ii) so-called “large-capacity magazines” that hold more than 10 rounds of ammunition. Read More

Heller v. District of Columbia — Amicus Brief

Michael Harless Constitutional Law, Firearms Law, U. S. Court of Appeals, District of Columbia Circuit

Today, our firm filed an amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit, supporting another challenge by the legendary Dick Heller to the District of Columbia’s onerous firearm registration and licensing requirements. This is our firm’s third amicus brief supporting Heller’s challenges to these DC gun regulations. In 2008, the Supreme Court adopted the type of analysis recommended by our first amicus brief. Read More

Comments filed with Bureau of Alcohol, Tobacco, Firearms & Explosives opposing Multiple Rifle Sale Reporting (take two)

Michael Harless Administrative Law, Firearms Law

For the second time in as many months, our firm filed comments on behalf of Gun Owners of America, Inc. and Gun Owners Foundation, expressing opposition to the ATF’s continuing effort to require federally licensed firearms dealers (FFL’s) to report to ATF information regarding the sale of multiple rifles.

Purportedly concerned about firearms being trafficked to Mexican drug cartels, three years ago ATF snuck past the courts a requirement that all FFLs located in the four southwest border states (California, Arizona, New Mexico, and Texas) must report to the ATF any sale to a single person of two or more rifles within a five day period. Read More

Jackson v. City & County of San Francisco — Amicus Brief

Michael Harless Constitutional Law, Firearms Law, U. S. Court of Appeals, Ninth Circuit

Today, our firm filed a brief to uphold gun rights in the U.S. Court of Appeals for the Ninth Circuit, in support of a Petition for Rehearing En Banc, in the case Jackson v. San Francisco, No. 12-17803.

San Francisco ordinances prohibit the possession of a handgun within the home unless it is (i) being worn on the person or (ii) locked away. San Francisco also prohibits the purchase of hollowpoint ammunition within city limits. A panel of three judges from the Ninth Circuit had upheld the ordinances on the ground that they “limit but do not destroy Second Amendment rights,” standing in stark contrast to the text of the Second Amendment which states clearly that the right “shall not be infringed.” Read More

Johnson v. United States — Amicus Brief

Michael Harless Firearms Law, U. S. Supreme Court

Today, our firm filed an amicus brief in the U.S. Supreme Court in the caseJohnson v. U.S., No. 13-7120.

The Petitioner, Johnson had been convicted of being a felon in possession of a firearm. Ordinarily, the trial judge would have had discretion to sentence Johnson up to 10 years in prison. However, the judge determined that Johnson met the definition of an “armed career criminal” under federal law, and thus subjecting him to a mandatory minimum sentence of 15 years. Read More

Shew v. Malloy — Amicus Brief

Michael Harless Firearms Law, U. S. Court of Appeals, Second Circuit

Our firm filed in the U.S. Court of Appeals for the Second Circuit an amicusbrief in support of Connecticut gun owners who challenged Connecticut’s ban of so-called “assault weapons” and “large capacity magazines.”

The law being challenged was passed by anti-gun Connecticut legislators and signed by an anti-gun Governor, riding a wave of hysteria following the December 2012 mass murder of elementary school children in Newtown, Connecticut. Those supporting the law claimed that to stop the violence “military style” weapons must be banned. Read More

Gun Owners of America & Gun Owners Foundation Comments to ATF on “Adjudicated as a Mental Defective”

Michael Harless Administrative Law, Firearms Law

President Obama announced that his Administration would do all in its power to stop gun violence. By that he seems to have meant reducing private ownership of firearms. Now, it turns out that he is not just doing things within his presidential power to achieve that objective – he is usurping legislative power to amend statutes unilaterally.

On January 7, 2014, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), issued Proposed Rules designed to vastly increase the number of Americans prohibited from owning firearms, including many U.S. Veterans, by changing the meaning of words contained in laws passed by Congress. Read More

Herb Titus Quoted in BNA Article “Aiding and Abetting Use of Firearm Requires Advance Knowledge of Gun”

Michael Harless Press Coverage

Herb Titus was quoted in a Bloomberg Bureau of National Affairs (“BNA”) Criminal Law Reporter article entitled “Aiding and Abetting Use of Firearm Requires Advance Knowledge of Gun.” The article involves the case Rosemond v. United States, in which our firm filed an amicus brief on August 9, 2013.

Herb was quoted as saying that “bare knowledge of the presence of a firearm is sufficient reason to impose an additional mandatory minimum consecutive sentence of five years…. The ruling has the effect of taking from the jury the key question of defendant’s guilt—his intent concerning the use of a firearm [and] upholds the power of prosecutors, not judges, to determine sentences given to thousands of defendants … Prosecutors will continue to have power de facto to impose mandatory minimum sentences — the very sort of sentences that Attorney General Eric Holder claims to oppose.” Read More

U.S. Justice Foundation Comments to HHS on HIPAA Privacy Rule and the NICS System

Michael Harless Administrative Law, Firearms Law

Our firm filed comments for U.S. Justice Foundation with the U.S. Department of Health and Human Services (“HHS”) opposing its Proposed Rule designed to decrease the number of Americans who may possess firearms, particular adversely affecting Veterans.

Our comments explain that the HIPAA Privacy Rules have been perverted from their original purpose to enhance patient confidences. Especially, with the new proposed amendments, these rules are now better understood as not involving privacy, but providing a justification for the federal government to have access to all of your private medical information. Read More

Gun Owners Foundation Comments to HHS on HIPAA Privacy Rule and the NICS System

Michael Harless Administrative Law, Firearms Law

Our firm filed comments for Gun Owners Foundation with the U.S. Department of Health and Human Services (“HHS”) opposing its Proposed Rule designed to decrease the number of Americans who may possess firearms, even for self defense in the home.

The HHS Proposed Rule (“PR”) is one of the “23 executive actions” announced by the Obama Administration allegedly in response to the Newtown, Connecticut mass shooting. It proposes changes in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) regulations which were designed to establish national standards to protect the privacy of healthcare records. This PR would authorize health care providers to provide information to the National Instant Criminal Background Check System (“NICS”). Read More

Drake v. Jerejian — Amicus Brief challenging New Jersey’s Concealed Carry Laws

Michael Harless Constitutional Law, Firearms Law, U. S. Supreme Court

In New Jersey, it is a crime to possess a firearm unless you can prove that you fit within one or more tightly-drawn statutory exemptions. One exemption allows a person to have a handgun on his own property, but he may not step one foot beyond unless the gun is fully disabled and he is heading to an approved destination.

New Jersey carry permits are like honest politicians — they are rumored to exist, but few have ever actually seen one. As one State legislator observed: “It is virtually never done.” An ordinary person may be granted a permit only if he can prove to the satisfaction of a judge that his life is in grave danger. Certain members of the privileged class of government workers are permitted to carry firearms; they need only prove that they are currently or were formerly employed in law enforcement. Read More

Quinn v. Texas Brief Filed Opposing No-Knock Home Raids

Michael Harless Firearms Law, U. S. Supreme Court

Every day we read about SWAT teams serving arrest warrants or search warrants at people’s homes, using no-knock raids in the middle of the night. Many of these police home invasions go wrong, with innocent people being shot, and sometimes killed, just because they were trying to defend themselves.  Even criminals have learned to claim that they are the police while breaking into homes, to discourage resistance. Read More

United States v. James Alvin Castleman Amicus Brief in the United States Supreme Court

Michael Harless Firearms Law, U. S. Supreme Court

On December 23, 2013, our firm filed an amicus curiae brief in the U.S. Supreme Court in U.S. v. Castleman, in support of the grant of a petition for certiorari. This case involves the meaning of the term “physical force” contained in the federal law defining misdemeanor crimes of domestic violence (“MCDV”), popularly known as the Lautenberg Amendment

Passed in 1996, the Lautenberg Amendment makes it a federal crime for a person to acquire or possess a firearm after he has been convicted of a MCDV. An MCDV is defined as a crime that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” Read More

Comments to ATF on NFA Weapons

Michael Harless Administrative Law, Firearms Law

Today, our firm submitted comments on behalf of Gun Owners of America and Gun Owners Foundation to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) opposing an ATF Notice of Proposed Rulemaking.

ATF’s proposed rule PR would change the requirements for applications to make or transfer certain National Firearms Act firearms and devices. Many CLEOs are opposed to an armed citizenry and, for that reason alone, simply refuse to sign NFA paperwork for any persons in their jurisdiction. However, under current rules, a person can still obtain an NFA weapon by using a trust or corporation. Under proposed rulemaking, though, the Obama ATF would require trusts and corporations to submit photographs, fingerprints and chief law enforcement (“CLEO”) approval for every “responsible person” connected with the trust or corporation. Read More

Bruce James Abramski v. US — Amicus Brief in the United States Supreme Court (on the Merits)

Michael Harless Firearms Law, U. S. Supreme Court

Today, our firm filed an amicus curiae brief in the U.S. Supreme Court in Abramski v. United States, in a case challenging the Bureau of Alcohol, Tobacco, and Firearms’ (ATF) definition of what constitutes an illegal “straw purchase” of a firearm. This case involves one of the greatest instances of regulatory and prosecutorial abuse that we have ever seen.

The concept of a “straw purchase” is a “doctrine” created by ATF and the courts, rather than a “crime” enacted by Congress. Indeed, as pointed out in our brief, in the immediate aftermath of the Newtown, Connecticut school shootings, Senators Leahy and Schumer introduced a bill (that was not enacted) to outlaw straw purchases. If straw purchases were already illegal, then there would have been no need for such a bill to be introduced. Read More

Rocky Mountain Gun Owners et al. v. John C. Hickenlooper Complaint in the District Court, City and County of Denver, Colorado

Michael Harless District Court, City and County of Denver, Colorado, Firearms Law, Litigation

Today a complaint was filed in the case of Rocky Mountain Gun Owners,et al. v. John C. Hickenlooper in the District Court, City and County of Denver, Colorado on behalf of plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S,LLC, d/b/a Alpine Arms. This case is a constitutional challenge of two Colorado firearm laws, HB 1229 and HB 1224. Our firm is serving as of counsel to the plaintiffs. Read More

National Rifle Association, et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al. Amicus Brief for The Lincoln Institute for Research and Education, et al. in the United States Supreme Court

Michael Harless Firearms Law, U. S. Supreme Court

Today, our firm filed an amicus brief in the U.S. Supreme Court, in support of a petition for certiorari filed by the National Rifle Association, challenging the federal prohibition against the purchase of firearms by 18-20 year olds.

Our brief noted that in the five years since Heller was decided, the lower courts have refused to follow the Heller framework for deciding cases based on the text and context of the Second Amendment. Instead, the courts have continued to employ judicial interest-balancing tests, an approach which the Heller Court specifically rejected. Read More

Raymond Woollard, et al. v. Denis Gallagher, et al. Amicus Brief for Gun Owners Foundation, et al. in the United States Supreme Court

Michael Harless Constitutional Law, Firearms Law, U. S. Supreme Court

Today, our firm filed an amicus brief in the U.S. Supreme Court in support of a petition for certiorari challenging Maryland’s “good and substantial reason” requirement for those who apply for a concealed carry permit.

Since Heller, which involved the “keeping” of a handgun within the home, most lower federal courts have been unwilling to give Second Amendment rights significant application outside the home. Unfortunately, most judges serving on the lower federal courts have exhibited a continuing visceral hostility to firearms, the Second Amendment, and the Heller decision. Read More

Rosemond v. United States Amicus Brief for Gun Owners Foundation, et al. in the United States Supreme Court

Michael Harless Firearms Law, U. S. Supreme Court

Today our firm filed an amicus brief in the case of Justus Cornelius Rosemond v. United States in the United States Supreme Court in support of petitioner. Our amicus brief urges the Supreme Court to examine the question raised in this case in light of the recently decided case of Alleynev. United States’ new interpretation of Section 924(c)(1)(A), defining three firearms offenses instead of only one. If the Government’s theory of aiding and abetting is affirmed in this case, it will unwisely and unnecessarily expand prosecutorial discretion in the administration of the mandatory minimum sentence structure of Section 924(c)(1)(A) and undermine the role of the jury envisioned in Alleyne. Read More

Abramski v. United States Amicus Brief for Congressman Steve Stockman, et al. in the United States Supreme Court

Michael Harless Firearms Law, U. S. Supreme Court

Today our firm filed an amicus brief in the case of Bruce James Abramski, Jr. v. United States in the United States Supreme Court in support of petitioner. Our amicus brief argues that the petition should be granted because it raises compelling concerns about the administration of the national instant background check system that have not been, but should be, settled by the Supreme Court. The ATF “straw purchase” doctrine upon which Abramski’s conviction rests conflicts with both statute and regulation. The ATF Form 4473’s question 11.a. and instructions are misleading and confusing, creating a trap for the unwary. The Form 4473 distinction between a third party gift and a third party purchase is arbitrary and capricious. Finally, Congress has not enacted any law authorizing the prevention of straw purchases of firearms from licensed firearm dealers and has thus far declined to enact the ATF “straw purchase” doctrine into law. Read More

United States v. Reese Brief of Appellees in the U.S. Court of Appeals for the Tenth Circuit

Michael Harless Firearms Law, U. S. Court of Appeals, Tenth Circuit

On July 11, 2013, our firm filed an appellees’ brief in the U.S. Court of Appeals for the Tenth Circuit on behalf of three individuals in a family-owned Federal Firearms Licensee (FFL) located in Deming, New Mexico.

Four members of the Reese family had been acquitted by the jury of all but four counts of a 30-count indictment. Then, nearly four months after the trial was over, the Government filed a sealed ex parte motion revealing to the court that, after trial, the government lawyers who tried the case were made aware of evidence that was potentially favorable to the defendants to impeach the credibility of one of the government’s key witnesses. By this motion, the Government asked for a ruling, without an adversarial hearing, that it had not violated its constitutional duty to disclose potential impeachment evidence. The trial judge refused, ordering the Government to turn the evidence over to the defense. Read More