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Discussion Starter · #1 ·
Did not see this posted.

Alan Gura wins in Bateman v. Perdue (E.D.N.C)

See volok.com for a nice discussion.
 

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Discussion Starter · #2 ·
Did not see this posted.

Alan Gura wins in Bateman v. Perdue (E.D.N.C)

See volok.com for a nice discussion.
 

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http://onlygunsandmoney.blogspot.com/2011/04/bateman-v-perdue-major-update.html

Bateman et al. v. Perdue et al was the first case filed after the Supreme Court incorporated Second Amendment rights in McDonald et al v. Chicago et al. The case is a challenge to the State of North Carolina's emergency powers ban on the possession of firearms and ammunition outside of the home during declared emergencies. The City of King, Stokes County, and the State of North Carolina were sued over the firearms and ammunition ban that occurred as a result of an emergency proclamation brought on by a heavy snow storm.

All three defendents filed Motions to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This motion is for the failure to state a claim upon which relief can be granted. The State Defendents - Gov. Beverly Perdue and Sec. of Crime Control and Public Safety Reuben Young - also filed a Motion to Dismiss for lack of subject matter jurisdiction.

On Thursday, March 31st, Senior U.S. District Court Judge Malcolm J. Howard issued a decision on these motions. He granted the motion to dismiss for the City of King and Stokes County. However, he found that the motion to dismiss for the State Defendents was moot due to their filing a Motion for Summary Judgment.

Judge Howard noted that both Stokes County and the City of King were authorized under NC General Statute § 14-288.12 and § 14 -288.13 to declare states of emergency as well as impose restrictions on firearms during declared states of emergency. He goes on to say that even though they had statutory authority granted by the state, this alone was not enough to state a claim for injunctive relief under 42 USC § 1983.
To impose liability against either Stokes County or the City of King, there must have been some "deliberate action attributable to the [local governmental body]" that is the "moving force" behind a deprivation of the plaintiffs' federal rights. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 400 (1997). Because plaintiffs are challenging only the state statutes and not any ordinance, regulation, policy or custom of either of these governmental bodies, plaintiffs' § 1983 claim against them fails.
Judge Howard then goes on to discuss the State Defendents' motion to dismiss. He notes that since they filed this motion, both the plaintiffs and defendents have filed cross motions for summary judgment. Both the plaintiffs and State Defendents included by reference their arguments for and against dismissal in their Motions for Summary Judgment as well as in their replies.
In light of these circumstances, the court construes the State Defendants' motion for summary judgment as a motion to dismiss or, in the alternative, for summary judgment. The court will rule on the parties' summary judgment motions in due course and in so doing will consider the briefs previously submitted in support and opposition of the State Defendants' motion to dismiss, as well as the parties' summary judgment briefs. The State Defendants' motion to dismiss [DE #29] is DISMISSED as moot.
In summary, Judge Howard granted the motions to dismiss for the City of King and Stokes County. He dismissed as moot the motions for summary judgment for the City of King and Stokes County and the motion to dismiss for the State Defendents. This leaves the motions for summary judgment by the plaintiffs and the State Defendents still remaining.

On a side note, the attorney of record for the State Defendents, Special Deputy Attorney General Mark Davis was replaced by Special Deputy Attorney General Alexander McClure Peters. Mr. Davis has left the North Carolina Department of Justice so could no longer remain as attorney of record.

Mr. Peters has an undergraduate degree in music from UNC-Greensboro and his J.D. from UNC-Chapel Hill. From a Google search on Mr. Peters, it appears that he has been with the NC Department of Justice since sometime in the late 1990s. Since all the motions for summary judgment have been filed by both parties, it probably will mean little that Mr. Davis has left the case.
Any victory for the cause is a good victory in my book.
 

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http://onlygunsandmoney.blogspot.com/2011/04/bateman-v-perdue-major-update.html

Bateman et al. v. Perdue et al was the first case filed after the Supreme Court incorporated Second Amendment rights in McDonald et al v. Chicago et al. The case is a challenge to the State of North Carolina's emergency powers ban on the possession of firearms and ammunition outside of the home during declared emergencies. The City of King, Stokes County, and the State of North Carolina were sued over the firearms and ammunition ban that occurred as a result of an emergency proclamation brought on by a heavy snow storm.

All three defendents filed Motions to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This motion is for the failure to state a claim upon which relief can be granted. The State Defendents - Gov. Beverly Perdue and Sec. of Crime Control and Public Safety Reuben Young - also filed a Motion to Dismiss for lack of subject matter jurisdiction.

On Thursday, March 31st, Senior U.S. District Court Judge Malcolm J. Howard issued a decision on these motions. He granted the motion to dismiss for the City of King and Stokes County. However, he found that the motion to dismiss for the State Defendents was moot due to their filing a Motion for Summary Judgment.

Judge Howard noted that both Stokes County and the City of King were authorized under NC General Statute § 14-288.12 and § 14 -288.13 to declare states of emergency as well as impose restrictions on firearms during declared states of emergency. He goes on to say that even though they had statutory authority granted by the state, this alone was not enough to state a claim for injunctive relief under 42 USC § 1983.
To impose liability against either Stokes County or the City of King, there must have been some "deliberate action attributable to the [local governmental body]" that is the "moving force" behind a deprivation of the plaintiffs' federal rights. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 400 (1997). Because plaintiffs are challenging only the state statutes and not any ordinance, regulation, policy or custom of either of these governmental bodies, plaintiffs' § 1983 claim against them fails.
Judge Howard then goes on to discuss the State Defendents' motion to dismiss. He notes that since they filed this motion, both the plaintiffs and defendents have filed cross motions for summary judgment. Both the plaintiffs and State Defendents included by reference their arguments for and against dismissal in their Motions for Summary Judgment as well as in their replies.
In light of these circumstances, the court construes the State Defendants' motion for summary judgment as a motion to dismiss or, in the alternative, for summary judgment. The court will rule on the parties' summary judgment motions in due course and in so doing will consider the briefs previously submitted in support and opposition of the State Defendants' motion to dismiss, as well as the parties' summary judgment briefs. The State Defendants' motion to dismiss [DE #29] is DISMISSED as moot.
In summary, Judge Howard granted the motions to dismiss for the City of King and Stokes County. He dismissed as moot the motions for summary judgment for the City of King and Stokes County and the motion to dismiss for the State Defendents. This leaves the motions for summary judgment by the plaintiffs and the State Defendents still remaining.

On a side note, the attorney of record for the State Defendents, Special Deputy Attorney General Mark Davis was replaced by Special Deputy Attorney General Alexander McClure Peters. Mr. Davis has left the North Carolina Department of Justice so could no longer remain as attorney of record.

Mr. Peters has an undergraduate degree in music from UNC-Greensboro and his J.D. from UNC-Chapel Hill. From a Google search on Mr. Peters, it appears that he has been with the NC Department of Justice since sometime in the late 1990s. Since all the motions for summary judgment have been filed by both parties, it probably will mean little that Mr. Davis has left the case.
Any victory for the cause is a good victory in my book.
 

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I'm usually pretty good with legalese, but I'm not a lawyer.  Can someone explain what happened here?
 

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I'm usually pretty good with legalese, but I'm not a lawyer.  Can someone explain what happened here?
 

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North Carolina apparently banned the movement of gun possessing people during declared states of emergency. The Federal Dirstrict Court Judge declared this law unconstitutional and offensive to the 2nd amednment. They applied strict scrutiny to the statute, holding that since you can't go out of your home to buy a gun to protect the homestead, it violates the 2nd amendment.

http://volokh.com/2012/03/29/district-holds-second-amendment-applies-outside-the-home-strikes-down-ban-on-gun-transportation-during/
 

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Sifting Through the Ruins
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North Carolina apparently banned the movement of gun possessing people during declared states of emergency. The Federal Dirstrict Court Judge declared this law unconstitutional and offensive to the 2nd amednment. They applied strict scrutiny to the statute, holding that since you can't go out of your home to buy a gun to protect the homestead, it violates the 2nd amendment.

http://volokh.com/2012/03/29/district-holds-second-amendment-applies-outside-the-home-strikes-down-ban-on-gun-transportation-during/
 

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Discussion Starter · #9 ·
Another important tid bit from this decision is the judge ruling that the Second Amendment applies outside of the home for personal protection and other reasons.

Apparently, liberal activist judges seem to think the Heller decisions "most notably in the home" means "only in the home." This is a positive step towards nullifying that nonsense.
 

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Discussion Starter · #10 ·
Another important tid bit from this decision is the judge ruling that the Second Amendment applies outside of the home for personal protection and other reasons.

Apparently, liberal activist judges seem to think the Heller decisions "most notably in the home" means "only in the home." This is a positive step towards nullifying that nonsense.
 

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Not a lawyer, but here's my two cents.  The biggest point the judge made was that strict scrutiny applies, not intermidiate on laws effecting the ownership of firearms.  Most of NY's laws would be nuked if strict scrutiny were ever applied to them, which is why we should hope this ruling has legs and hopefully sets a precident.  Steve G, your thoughs sir?
 

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Not a lawyer, but here's my two cents.  The biggest point the judge made was that strict scrutiny applies, not intermidiate on laws effecting the ownership of firearms.  Most of NY's laws would be nuked if strict scrutiny were ever applied to them, which is why we should hope this ruling has legs and hopefully sets a precident.  Steve G, your thoughs sir?
 
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