05/15/11 - VCDL Update 5/15/11

[allingeneral]

VCDL's meeting schedule: http://www.vcdl.org/meetings.html
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Abbreviations used in VA-ALERT: http://www.vcdl.org/help/abbr.html
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1. Henrico Police to do presentation on "man with a gun" calls at VCDL meeting in Richmond on June 8th
2. VCDL pot luck picnic in Salem, May 21
3. My interaction with Chesterfield PD during a night walk this week
4. Shot down: D.C. residents unable to register handguns
5. Who needs a gun outside the Liberty University dormitories?
6. Bloomberg's lackey Mayors
7. Why would you need a gun outside your home?
8. 2nd Circuit vacates injunctions NYC sought against gun shops in SC and GA
9. Learning to safely handle a firearm
10. Safety notice: Bushmaster ACR rifle recall


**************************************************1. Henrico Police to do presentation on "man with a gun" calls at VCDL meeting in Richmond on June 8th**************************************************

We have been working with the Henrico PD for them to make a presentation on how they handle "man with a gun" calls. They will also answer other questions you might have about their operation.

Mark your calendars for Wednesday, June 8th, from 7:00 PM to 8:30 PM. We will meet at :

Tuckahoe Library1901 Starling DriveHenrico, VA 23229

Fellowship will start at 6:30 PM. We will go to a local restaurant after the meeting for further fellowship.

A similar event was held with Fairfax PD earlier this year and we had a big turn-out. People really liked the opportunity to be able to interact with the men and women who patrol our streets and protect our communities.

As with all VCDL membership meetings, they are open to the public, so bring friends, family and co-workers.

See you there!

**************************************************2. VCDL pot luck picnic in Salem, May 21**************************************************

Southwest Virginia will again have a FAMILY "POT LUCK" picnic at Longwood Park, Salem VA on May 21. Food will be served starting at 11 AM. This event is open to all VCDL members, families and guests. Plan early to join us for this family event. More details will be published prior to the picnic date.

Longwood Park 800 Main Street Salem, VA 24153

Please contact Al Steed, Jr. at al*vcdl.org for more information.

**************************************************3. My interaction with Chesterfield PD during a night walk this week**************************************************

On Thursday night I was out for a lengthy midnight walk. It was a nice, quiet night and I was open carrying.

While passing through a neighborhood I saw an automobile in front of me, which appeared to be waiting to turn left from a side street. Rather than walk in front of the car, I stopped walking so the car would proceed with the turn and I could continue my walk. No big deal, it happens from time to time.

The car did make the left turn (which put it heading toward me), BUT it was doing an overly tight turn, so I stepped up on the curb to make sure I was out of the car's way. That was unusual behavior, so I was watching the car carefully.

The vehicle stopped and the driver rolled down his window and said something that I didn't catch. I figured that perhaps the person was lost and asking for directions. I cautiously stepped toward the car to see if that's what the driver wanted.

The next thing I know the door of the car is opening and the person is getting out of the vehicle! Remember, this is very late at night. Very unusual behavior to say the least. **I was now on full alert.** Who was this, what did they want, did they mean me any harm? I didn't have an answer to any of those questions.

As the person was getting out of the vehicle, I briefly got a flash of a uniform. Ah, it is a police officer! I breathed a sigh of relief. (Of course a uniform is NOT a guarantee the person is an actual officer. If you are suspicious, ask to see their commission.)

However, now comes the next question - what could he possibly want with me?

He walked up to me and said there had been some vandalism and thefts in the area and he asked if I had seen anybody during my walk.

I said, "not a soul."

He said that it was kind of late for someone to be walking. I said, "not for me."

He asked where I lived and I gave him the name of the neighborhood.

He asked if I had any identification.

I said, "I'm simply out for a walk and I have no legal obligation to provide any ID."

He said that he wanted to show he was at least doing due diligence by getting the names of anybody in the area of the vandalism.

His demeanor was professional and he was not trying to be intimidating in any way, so I said, "As a courtesy, I will let you see my ID."

He thanked me and took my ID, jotted down my name and handed back my ID about 5 second later.

I told him I hoped he caught the vandals and that I would keep an eye out during my walks. I then went on my way.

Some thoughts on this encounter:

On the plus side: The officer was professional, non-intimidating, and didn't say a word about my openly carried gun. He did not disarm me nor did he run my ID for warrants. The whole interaction took no more than 2 minutes.

On the neutral side, he asked for my ID. He's free to do that, but couldn't demand it, which he didn't. I voluntarily provided the ID. In retrospect if I have another such interaction, I'm going to give the officer one of my VCDL business cards instead.

On the negative side, he should have briefly flashed his blue lights on that unmarked car before driving towards me so that I would reasonably know that he was a police officer. That way I would have not been so apprehensive when he drove up next to me and started getting out of his vehicle.

Police often say that they have to be careful because they never know who they are interacting with during a traffic stop. That is true. However, when an officer is in an unmarked vehicle and drives up to a citizen, the shoe is on the other foot. The citizen has no idea who is in that car and doesn't know if the driver means them harm. The officer should be careful not to alarm a citizen unnecessarily by indicating in some manner his status as a police officer before doing anything that would under other circumstances be viewed as unusual or threatening behavior.

**************************************************4. Shot down: D.C. residents unable to register handguns**************************************************

"They keep making this eternal vigilance thing harder and harder. Protecting the 2nd amendment is like playing pacman. There's no pause button so you can go to the bathroom" - quote from an anonymous gun owner in response to this article:

=46rom WTOP-FM: http://tinyurl.com/63efuqs

By Mark SegravesApril 29, 2011

WASHINGTON - Nearly three years after the United States Supreme Court overturned the D.C. ban on handguns, residents of the District can no longer register guns in the city.

A temporary, de facto ban is in place because the one man who could facilitate handgun ownership in the nation's capital has stopped taking registration orders.

Since the lifting of the handgun ban in June 2008, Charles Sykes has processed more than 1,000 handguns for District residents. Sykes tells WTOP he's stopped taking orders for now.

"I've lost my lease," Sykes said in a phone interview. "I'll take care of the customers who already placed orders, but I don't want to take any more until I know where I will reopen."

Sykes is the sole proprietor of C S Exchange, the only licensed firearm dealer in the city that will transfer guns for individuals. Sykes doesn't sell the guns -- there are no gun stores in D.C. His company facilitates the transfer of guns from out of state stores into the District for a fee of $125 per gun.

Federal law prohibits individuals from buying a handgun outside D.C. and then bringing it into the District. That transfer has to be done by someone with a Federal Firearms License.

Michelle Lane lives on Capitol Hill, and wanted a gun for protection and target practice. She bought two guns in Virginia: a Ruger LCR revolver and a Kahr K9 Elite 9mm. After buying them, she found out she couldn't have them shipped into the city.

"It's not fair," she tells WTOP. "I followed the law. Criminals bring guns into the city. It's frustrating."

D.C. Councilmember Phil Mendelson, who helped write the District's new gun laws after the Supreme Court ruling, says the problem is not due to regulations.

"We've known for a while that (Federal Firearms License) was a vulnerability, that there is only one FFL dealer in the District," Mendelson says. "That's not because of the law, that's because of the market."

Alan Gura, the attorney who argued and won the case before the Supreme Court, says this may mean going back to court.

"This is a very serious problem," Gura said from his office in Old Town Alexandria. "It's something we are going to be taking a very close look at."

Lane's frustration may last a while, because it could be months before Sykes is able to re-open. He tells WTOP he hopes to have a new office location picked out in a week or two.

Even if Sykes were to find a new location, he is required to give the Bureau of Alcohol, Tobacco and Firearms 30 days advance notice of his move, and then the ATF has 60 days to review and approve the new location. The move would also have to be approved by the Metropolitan Police Department and the District's Office of Zoning.

Sykes has not given any notice, but says he'll ask ATF for an expedited review.

Mike Campbell, a spokesperson for ATF, says in an email Sykes has yet to inform the agency of his intent to move.

"Mr. Sykes is free to request an expedited review/inspection of his application and his new business premises. However, he has certain responsibilities that he has to fulfill before we can do anything related to a location change. We have no record of a request for a change of address."

Approval of a new location for Sykes isn't the only road block delaying District residents from getting handguns. Zoning requirements on where gun dealers can locate are strict, making it difficult for Sykes or any potential gun dealer to find a suitable location.

Kevin Shepard owns Second Amendment Safety and Security, and has had a Federal Firearms License since 2008, but has not been able to find a location to open his business. He says the zoning requirements are too restrictive.

"It's impacted my economic liberty," Sheppard says. "I'm trying to start a business and they're making it too difficult."

Zoning regulations require gun dealers to locate in either a commercial zone or industrial zone. Most of the District is either zoned for residential use or is federal land. There is also the added restriction of dealers not being able to open a shop within 300 feet of any home, church, school, library or playground.

Gura says that's not in keeping with the Supreme Court ruling.

"The bottom line is the people who live in the Washington, D.C. are entitled to the right to keep and bear arms for self defense," he says. "The city cannot use its zoning laws to interfere with that right."

Mendelson is sympathetic, but defends the regulations.

"There are some distance requirements, such as from a school or playground and I think that makes some sense," Mendelson says. "Other cities do that."

Gura is not buying that explanation.

"Councilmember Mendelson should know the buying and selling of firearms is protected by the second amendment, the city cannot use its zoning laws to make it virtually impossible to operate a retail gun store," Gura argues.

Mendelson says he's willing to meet with any gun dealer who is having trouble finding a location and see if something can be done.

As for Lane, she just wants to bring her gun home.

"This is the one thing that would make me move out of the District," she says.

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UPDATE: 4:15 p.m.: The ranking member of the Senate Judiciary Committee says the D.C. government should step in to help residents of the nation's capital make legal gun purchases --something they can't do now, even though the U.S. Supreme Court overturned the city's ban on handguns nearly three years ago.

"The city government of Washington, D.C. has a responsibility to make sure that every resident of D.C. can exercise their constitutional rights. And one of those constitutional rights is the individual to have a right to bear arms," Sen. Charles Grassley (R-Iowa) told WTOP.

Grassley, after learning there's a de facto gun ban in place because the one man who could facilitate handgun ownership in Washington has stopped taking registration orders after losing his office lease, said the D.C. government needs to take action.

He says it's "absolutely wrong" that D.C. residents currently can't buy a gun legally and bring it home.

Grassley says "let the city government do the licensing, if you don't have a licensed dealer."

He says another option would be for the city to make it legal for a gun purchased legally anywhere else in the United States, to be allowed in the District.

**************************************************5. Who needs a gun outside the Liberty University dormitories?**************************************************

Sonny Sundaramurthy emailed me this:

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=46rom Liberty University: http://tinyurl.com/6y4z3qw

In the early morning hours of Sunday, May 1 in the vicinity of the dorms on Champion Circle, two Liberty University students were robbed of their money by an unknown male subject. The subject held what appeared to be a two and half inch bladed knife on the two students and demanded their money. The subject then fled on foot into the wooded area, presumably headed towards the Wards Road area. An extensive search of the area was conducted by the Liberty University Police Department and Lynchburg Police Department. The suspect has not been located.

The subject is described as being approximately 5 feet 8 inches tall, about 170 pounds, dark skinned and between the ages of 18 and 22. The subject was wearing a black shirt, black shorts, black and gray shoes and had a black T-shirt wrapped around his head to conceal his facial features.

Please use extra caution if you are out after dark. If you see someone on campus resembling or matching this description, please call the Liberty University Police Department at 434-592-7641 immediately. Your cooperation is greatly appreciated. The Liberty University Police Department is continuing to investigate this incident and has also increased patrols throughout campus.

**************************************************6. Bloomberg's lackey Mayors**************************************************

Bloomberg's lackey Mayors from Virginia. Remember these people when election time draws near.

Mayor William EuilleAlexandria, VAhttp://tinyurl.com/68kdhag

Mayor Faye PrichardAshland, VAhttp://tinyurl.com/68mvdjn

Mayor Dave NorrisCharlottesville, VAhttp://tinyurl.com/67gpewm

Mayor James CouncillFranklin, VAhttp://tinyurl.com/3cv9udo

Mayor Paul D. FraimNorfolk, VAhttp://tinyurl.com/3v9hczw

Mayor Annie M. MickensPetersburg, VAhttp://tinyurl.com/3m6zmkv

Mayor Iris TharpQuantico, VAhttp://tinyurl.com/4yenrun

Mayor Dwight C. JonesRichmond, VAhttp://tinyurl.com/4xsyks9

Mayor William Sessoms Jr.Virginia Beach, VAhttp://tinyurl.com/65tfzd4

**************************************************7. Why would you need a gun outside your home?**************************************************

VCDL Board member Dale Welch emailed me this:

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Why would you need a gun just outside your home/apartment?

This man was lucky......this time.

=46rom the Richmond Times-Dispatch: http://tinyurl.com/6565mxe

May 4, 2011

2 quick arrests after armed street robbery in South Richmond

Two quick arrests were made Tuesday night after an armed street robbery in South Richmond.

Richmond police Capt. Paul Kiniry said Aaron Gary, 20, and Devin Wyklle, 18, were arrested by 3rd Precinct officers who were patrolling the Forest Hill area when a man was robbed at knifepoint at 9:39 p.m.

The victim was not injured in the robbery, which occurred when he was confronted by two males outside his apartment in the 3900 block of Forest Hill Avenue. The victim told police one of the robbers placed something _ possibly a gun _ against the side of his chest and ordered him to surrender his belongings.

After the victim gave the robbers money, they fled on foot, but 3rd Precinct officers quickly spotted the suspects nearby and took them into custody. Kiniry said both suspects were positively identifed by the victim and a witness who was with him at the time of the robbery, and a knife was found on one of the suspects.

Gary and Wyklle were both charged with robbery.

**************************************************8. 2nd Circuit vacates injunctions NYC sought against gun shops in SC and GA**************************************************

Bloomberg gets another setback in his efforts to destroy some gun stores.

EM Dave Hicks emailed me this:

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=46rom The Volokh Conspiracy: http://tinyurl.com/3zgufnh

By Eugene VolokhMay 4, 2011

Second Circuit Decision as to Default Judgment and Injunction Obtained by New York City Against Out-of-State Gun Sellers

The case is City of New York v. Mickalis Pawn Shop, LLC (2d Cir., decided today). The court's summary:

The defendants-appellants, Mickalis Pawn Shop, LLC, and Adventure Outdoors, Inc., are retail firearms dealers located in South Carolina and Georgia, respectively. The City of New York brought suit against them and other firearms dealers for public nuisance on the theory that they intentionally or negligently sell firearms in a manner susceptible to illegal trafficking to New York City.

After engaging in litigation with the City for several years, each defendant-appellant defaulted. Upon entry of default judgment, the district court issued permanent injunctions prohibiting the defendants-appellants from further violations of the law and requiring them to undergo supervision by a court-appointed special master. They appealed, asserting that a default judgment should not have been entered; that the default judgment is, in any event, void for lack of personal jurisdiction over each defendant; and, in the alternative, that the injunctions violate Federal Rule of Civil Procedure 65(d) or are unconstitutional.

We conclude that the defendants-appellants' withdrawal from the district court proceedings justified the entry of default, followed by default judgment; that the defendants forfeited their defense of lack of personal jurisdiction; and that the default judgment is not void. [Text moved:-EV] The district court may have erred in its determination that the City had made a prima facie showing of personal jurisdiction over each of the defendants, for the reasons discussed in Judge Wesley's concurring opinion [which strongly criticized District Judge Jack Weinstein's jurisdictional analysis -EV]. But we have already concluded that by appearing, litigating, and then intentionally withdrawing from the proceedings, the defendants forfeited their jurisdictional defense. [End moved text.]

We agree with the defendants-appellants, however, that the injunctions issued by the district court violate Rule 65(d). We therefore vacate the injunctions and remand for further proceedings....

First, the injunctions impose on defendants an obligation to act "in full conformity with applicable laws pertaining to firearms," and to "adopt[] appropriate prophylactic measures to prevent violation" of those laws, without specifying which laws are "applicable" or identifying the ways in which the defendants must alter their behavior to comply with those laws. Mickalis Pawn Inj., 2009 WL 792042, =14 3; see also id. =14 17 (requiring "full compliance" with "applicable firearms laws and regulations"). A directive to undertake "appropriate" measures does not "describe in reasonable detail .... the act or acts restrained or required," nor does it provide "explicit notice of precisely what conduct is outlawed." Indeed, we have said that to comply Rule 65(d), "an injunction must be more specific than a simple command that the defendant obey the law."

Second, it appears that the injunctions, fairly read, prohibit not only "straw purchases" - the sole kind of illegal practice identified in the City's amended complaint - but other, unidentified types of sales practices as well. An injunction is overbroad when it seeks to restrain the defendants from engaging in legal conduct, or from engaging in illegal conduct that was not fairly the subject of litigation.

The injunctions are also problematic because of the extent to which they vest the Special Master with discretion to determine the terms of the injunctions themselves. Paragraph 7 of each injunction requires the defendants to "adopt those practices that in the opinion of the Special Master serve to prevent in whole or in part the illegal sale of firearms" and "adopt those prophylactic practices that in the opinion of the Special Master will serve to prevent the movement of guns into the illegal market." Mickalis Pawn Inj., 2009 WL 792042, =14 7 (emphases added). A defendant's "failure to cooperate with the Special Master" constitutes a violation. Id. =14 8. Moreover, the injunctions provide that any dispute as to whether a violation has occurred, or any disagreements concerning decisions made by the Special Master, are to be resolved by the Special Master himself in the first instance. Id. =14 9. Although a party may appeal "any decision or practice of the Special Master" to the district court, the Special Master's decisions are made subject only to "arbitrary and capricious" review. Id. The injunctions further specify that if a defendant is unsuccessful in challenging the Special Master's decision, the defendant "shall pay the Special Master's costs and attorneys' fees." Id. =14 10.

"The power of the federal courts to appoint special masters to monitor compliance with their remedial orders is well established," and a special master possesses some power to "determine the scope of his own authority." But the Supreme Court has also warned that "[t]he use of masters is to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause, and not to displace the court." Serious constitutional questions arise when a master is delegated broad power to determine the content of an injunction as well as effectively wield the court's powers of contempt. "If the master makes significant decisions without careful review by the trial judge, judicial authority is effectively delegated to an official who has not been appointed pursuant to article III of the Constitution."

Constitutional questions aside, we conclude that, at the very least, the injunctions' sweeping delegations of power to the Special Master violate Rule 65(d). "A court is required to frame its orders so that those who must obey them will know what the court intends to forbid."

[Footnote: We reject, however, the defendants' argument that the injunctions violate principles of state sovereignty, comity, and federalism. To be sure, "[t]he court's discretion to frame equitable relief is limited by considerations of federalism," and "[a] State cannot punish a defendant for conduct that may have been lawful where it occurred," State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003). However, it is also true that "[t]he federal court sitting as a court of equity having personal jurisdiction over a party has power to enjoin him from committing acts elsewhere." Here, the defendants have identified no authority for the proposition that a court in New York may not restrain a defendant in Georgia or South Carolina from violating U.S. federal firearms laws, which are of course binding in both jurisdictions. Nor have the defendants demonstrated that Georgia and South Carolina law is materially different than New York law in relevant respects.]

The court declined to discuss any defenses under the Protection of Lawful Commerce in Arms Act, even though "there is some uncertainty whether the City's claims were legally sufficient, in light of their possible preemption by the PLCAA," because "the defendants have forfeited this defense on appeal.." "Mickalis Pawn did not address the PLCAA in its opening brief, and Adventure Outdoors raised it only by way of footnote," and that's not enough to preserve a legal claim.

Josh Blackman also has a post about this.

Court decision: http://tinyurl.com/3tz3dyn

**************************************************9. Learning to safely handle a firearm**************************************************

VCDL Board Member Bruce Jackson emailed me this:

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=46rom the Star Exponent: http://tinyurl.com/3ntcrq2

By Nate DeleslineMay 1, 2011

Learning to safely handle a firearm wasn't as intimidating or complex as I thought, but the moral and ethical issues that accompany gun ownership and use seem like loaded questions with no easy answers.

That was my take-away after participating in an all-day course on handgun safety. The event was sponsored the Culpeper County Sheriff's Office as an element of the Joint Citizens' Academy.

Our classroom instructor was sheriff's office investigator David Payne, who has 20 years experience in the military and law enforcement realms. At the firing range, Culpeper Police Department officers Scott Roy and Tim Chilton joined us.

In the classroom at Culpeper's E-911 center, a substantial amount of time and passionate but respectful discussion was dedicated to the serious questions that arise each time a person prepares to use a gun.

And the hypothetical questions were endless: Would a reasonable person on the scene have acted in the same manner? If someone breaks into your home at night, how far should you retreat in your own home before you respond with deadly force? Should you have to retreat at all? Is it ever appropriate to fire a pre-emptive shot to diffuse a situation? What about shooting at something you can't see?

According to Payne, simply the fear of harm alone is not enough - there must be a physical threat. And Virginia has no statutory law on deadly force - in other words, there is no law that "permits" you to shoot someone in any situation.

Personally, I would never want to be in a position of having to second guess or defend my actions. If I'm in a position to have to shoot someone, I want a clear conscience.

With those thoughts on my mind, and fueled by freshly grilled burgers and homemade pasta salad, the class headed over to the range to put some of our new found skills to the test. After a quick safety briefing, it was time. I was in the first group of three to step up to the line.

There was so much to remember: Proper grip, don't let that slide catch your hand, keep the gun pointed in a safe direction, aim and squeeze.

The first shot I ever fired from a real firearm, a .45 caliber semi-automatic pistol, had surprisingly more recoil than I expected. I took me some time to get centered on the target again. I'm proud to say that with concentration and coaching, nearly all of my shots were on target.

Once everyone had a chance to do a round with the handgun, we were afforded an opportunity to fire some tactical weapons. I found the M4 carbine with a laser sight somewhat hefty, but rather easy to fire and easy to handle.

Overall, I found my time at the firing range extremely enjoyable and I'm glad I can cross this experience off my bucket list. While I'm far from an expert shot, I've gained a baseline of knowledge for the next time I'm afforded a chance to pull the trigger.

**************************************************10. Safety notice: Bushmaster ACR rifle recall**************************************************

Gerald Ameral emailed me this:

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Philip,

I just got my new (June 2011) issue of Guns and Ammo. In it there are several recall and safety warnings of interest. One of these was most especially interesting to me as it put me in mind of the Olofson case involving the Olympic Arms recall of nearly the same problem as the current Bushmaster ACR rifle Notice. It seems that a design flaw has been found that can allow multiple rounds to discharge with one pull of the trigger.

The Bushmaster notice say's "If you have a Bushmaster ACR rifle, immediately discontinue the use of the rifle and contact Bushmaster at 1-800-883-6229.. ...". Along with the safety concerns I felt it would be prudent to pass this information along to fellow members in order to avoid another Olofson type event [PVC: To learn more about Olofson read "The Accidental Felon" here: http://tinyurl.com/2cqwkr]. I am confident that most shooters stay well informed but as we have seen it falls to the firearms OWNER not the Manufacturer or Law enforcement communities to protect us.

Bushmaster ACR Product Safety Notice: http://tinyurl.com/2eh5gro



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