The Second Amendment Foundation filed a notice of appeal this morning with the U.S. Ninth Circuit Court of Appeals in San Francisco, the next step in its challenge to Initiative 594, the 18-page gun control and handgun registration scheme approved by voters in November, less than 24 hours after the Seattle P-I.com reported that the measure had “survived a federal court challenge.”
Not so fast, seems to be what SAF and its co-plaintiffs are saying this morning. The District Court judge in Tacoma dismissed the case on “standing,” without a hearing on the actual merits of the lawsuit. An appeal to the Ninth Circuit is aimed at getting a reversal, remand and hearing on the lawsuit.
District Judge Benjamin H. Settle dismissed the case essentially because none of the plaintiffs could show damage since they had not been prosecuted for violating the law. Indeed, the Washington State Patrol declined to enforce the “transfer” provisions during an anti-I-594 demonstration in December because it was allegedly not clear whether exchanging firearms falls under the definition of “transfer.”
However, the term seems clearly defined in the text of the measure. “‘Transfer’ means the intended delivery of a firearm to another person without consideration of payment or promise of payment including, but not limited to, gifts and loans.” (Emphasis added.)
SAF and its co-plaintiffs have added a veteran California attorney to their legal team for this important step. Attorney Donald Kilmer of San Jose has considerable experience with the ninth Circuit, and according to a SAF press release announcing the notice of appeal, he’s been “fully briefed” on the case by the organization’s legal team, which includes Seattle attorneys Steven W. Fogg and David B. Edwards with Corr Cronin Michelson Baumgardner Fogg & Moore LLP, and Bellevue attorney Miko Tempski.
“We believe an appeal will result in the case being remanded for full hearing because there are serious issues at stake,” said SAF founder Alan Gottlieb. “Citizens should not have to actually be criminally prosecuted in order to challenge the constitutionality of a poorly-written law.”
As spelled out in the original lawsuit, “Plaintiffs are not aware of any arrests, citations, or prosecutions related to a violation of I-594 in the month it has been in effect. But Plaintiffs and members of the SAF have refrained and continue to refrain from engaging in Constitutionally protected activities for fear of arrest and prosecution under I-594.”
Gottlieb is one of the individual plaintiffs in the case, along with his son, Andrew, an Arizona resident, Joe Waldron of Florida and Californian Gene Hoffman, plus Darryl Lee and Xee Del Real,. They are joined by the Northwest School of Safety, Puget Sound Security, Inc., the Pacific Northwest Association of Investigators, Inc., Firearms Academy of Seattle, Inc., and the Gottlieb Family Revocable Living Trust.
The lawsuit was filed Dec. 30, and several weeks ago, Judge Settle allowed two gun control groups – the Washington Alliance for Gun Responsibility and the Everytown for Gun Safety Action Fund for I-594 – to intervene as co-defendants. WAGR ran the initiative campaign and Everytown was a heavy backer. Everytown is the $50 million lobbying group created by billionaire anti-gunner Michael Bloomberg.
If this appeal secures a hearing in Tacoma, it could put the state in a tough spot. So far, the state has declined to enforce provisions of the law. The original complaint may be read here.
“The agencies of the State of Washington,” the complaint asserts, “have so far either disclaimed the responsibility to interpret I-594 or provided interpretations that are so far removed from the language as to be useless.”
The lawsuit also addresses the inability of non-residents visiting Washington to borrow a sidearm for personal protection while here. Under I-594, such loans are subject to background checks, but a federal firearms licensee cannot do a background check for the transfer of a handgun to a non-resident of the state.
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