SPRING G 2010
Victories in the Courts!
Judges Nationwide Reject Gun Lobby Challenges to Gun Laws and Victims
T he Brady Center’s Legal
Action Project has been busy
in the courts recently, and a
sampling of our latest legal victories
includes important wins in Massachu-
the state from prosecuting him for
illegal gun carrying, but the Court
unanimously rejected that argument.
Victory in DC – Strong Gun
against Juneau gun dealer Rayco Sales,
whose gun was used in a murder by a
drug-addicted criminal. The ruling is
the first of its kind in the state. The
court agreed with Brady Center
setts, Washington, D.C., Alaska, Laws Upheld attorneys that Alaska law supports
Tennessee, and before the 11th Circuit. denying the gun shop’s request to
On March 26, 2010, throw out the suit.
Massachusetts Victories – United States District
Judge Ricardo Urbina
Life-Saving Gun Laws Upheld dismissed a broad
(continued on page 5)
in Two Cases challenge to the
On March 10, District of Columbia's
2010, the firearms registration
Massachusetts procedures, assault weapons ban, and
Supreme ban on large-capacity ammunition
Judicial Court agreed with amicus magazines. Judge Urbina held that the
briefs filed by the Brady Center, gun laws, enacted after the District's
upholding two state firearms laws gun ban was struck down by the
against Second Amendment challenges Supreme Court in D.C. v. Heller,
in Commonwealth v. Runyan and were permissible under the Second
Commonwealth v. DePina. Amendment. The case was brought by
the same man who successfully chal-
In Runyan, the Court rejected gun lenged the District's handgun ban. The
lobby arguments that the Second Brady Center assisted the District in the Read about our efforts to
Amendment grants gun owners a case. The opinion demonstrates that get guns out of Starbucks
right to leave semiautomatic weapons localities remain able to enact strong, on page 4.
unlocked near children. A lower court common sense gun laws in the wake
had dismissed a case against Richard of Heller. As Judge Urbina noted, "It is
Runyan, holding that a state safe beyond dispute that public safety is an
storage law was unconstitutional important — indeed, a compelling — INSIDE
under District of Columbia v. Heller. The governmental interest."
Supreme Judicial Court reversed, From the Director 2
unanimously agreeing with the Brady Alaska Victory – Precedent-
Center that the Second Amendment Setting Win For Victim of Gun Brady Center Lawsuits 3, 6-7
does not prohibit states from requiring Shop’s Negligence
owners to store their guns safely. Guns and Starbucks 4
An Alaska trial
In DePina, the Supreme Judicial Court court ruled in Brady Center Report 5
agreed with the Brady Center when it January that a
rejected an appeal by a man convicted jury may hear Client Spotlight 8
of illegally carrying a loaded firearm. the case of
Legal Action is published by the Legal Action
Nathaniel DePina had claimed that a gun violence Project of the Brady Center to Prevent Gun
the Second Amendment prohibited victim’s family Violence
Taking the Fight Against Gun Violence into Our Nation’s Courts
FROM THE DIRECTOR — CHAPLINSKY’S GUN: A “REASONABLE” APPROACH TO THE 2ND AMENDMENT
T heir declarations of victory
notwithstanding, the gun
lobby has not been happy
with the Supreme Court’s 5-4 decision
in District of Columbia v. Heller. After
constitute “prior restraints.” Licensing
and registration are off the table
because “the government can’t
require a license to exercise a
Constitutional right.” While these
further government interests such as
preserving tranquility, “protecting its
citizens from unwelcome noise,” and
“avoiding congestion.” The Court has
continually recognized that states
all, the right recognized in the narrow arguments may have some superficial have “cardinal civic responsibilities”
decision — of “responsible, law- appeal, they simply do not hold to protect their citizens, and have
abiding citizens” to have a gun in water. To see that, one need look no “great latitude” to exercise their
the home for self-defense — was further than an old nursery rhyme, “police powers to legislate as to the
already allowed in virtually all and some old case law. protection of the lives, limbs, health,
jurisdictions, and the only remaining comfort, and quiet of all persons.”
handgun bans may be struck down “Sticks and stones may break my Courts have upheld reasonable
in McDonald v. City of Chicago. It is bones,” goes the rhyme, “but words restrictions on other rights as well,
not surprising that the gun lobby will never hurt me.” And guns, we from voting to property.
has aimed its litigation arsenal to try know, can kill you. Indeed, every year
to convince courts that the Second in America more than 100,000 people Gun lobby lawyers ignore all this in
Amendment right to arms is far are shot, over 30,000 of whom are their effort to transform the Second
broader than the right recognized killed by gunfire. The rhyme reminds Amendment into a barrier to sensible
in Heller. us that a right to guns is far different gun laws. The gun lobby lawyer who
than speech, or any other right recog- argued Heller and McDonald claims
One of the gun pushers’ primary nized in the Constitution. Analogies that cities do not even have the
arguments is an analogy to the First to the First Amendment can only get authority to prevent today’s
Amendment. One handgun a month one so far. Chaplinskys from carrying loaded
laws are impermissible, they say, guns in public. The gun lobby claims
because “you can’t ration a right.” Old case law reminds us that not that “strict scrutiny” should apply to
Bans on carrying guns in public even the First Amendment provides a all gun laws, even though many
right to place others at risk of harm. speech restrictions are subject to a
Take the case of Chaplinsky v. State of more deferential standard of review.
New Hampshire. Walter Chaplinsky, a
The Brady Center to Prevent Gun Jehovah’s Witness, was arrested one The courts, thankfully, have disagreed
Violence is a nonprofit, education, Saturday in 1940 when he stood near — so far anyway. As we explained
research, and legal advocacy organization the entrance of City Hall in Rochester, in the amicus brief we filed in the
established in 1983 to reduce the tragic
toll of gun violence in America. New Hampshire and said to the City Supreme Court in McDonald, courts
Marshall, “You are a God damned construing state right to keep and bear
Sarah Brady
racketeer” and “a damned Fascist and arms provisions have consistently
Chair the whole government of Rochester applied a deferential standard of
Paul Helmke are Fascists or agents of Fascists.” review under which “reasonable”
President Charged with violating New gun laws are upheld. At the argument
Dennis A. Henigan Hampshire law, Mr. Chaplinsky in McDonald, the Justices appeared to
VP for Law and Policy claimed that the state could not agree that after Heller, governments
Jonathan E. Lowy prevent — or punish — his exercise retain broad latitude to reasonably
Legal Action Project Director
of First Amendment rights. A regulate guns in society.
Daniel R. Vice
Senior Attorney unanimous United States Supreme
Robyn Long
Court disagreed, holding that the After all, Mr. Chaplinsky’s gun is far
Editor-in-Chief of Legal Action & Constitution did not protect Mr. more dangerous than his mouth.
Legal and Policy Research Assistant Chaplinsky’s use of “fighting words.”
The Justices agreed that it was “with-
in the domain of state power” to bar
1225 Eye Street, NW, Suite 1100 “the use in a public place of words
Washington, D.C. 20005
likely to cause a breach of the peace.”
Phone: (202) 289-7319
Internet: www.bradycenter.org/legalaction
Copyright © 2010 In other cases, the Supreme Court Jonathan E. Lowy
Brady Center to Prevent Gun Violence. has upheld restrictions on speech to Legal Action Project Director
All Rights Reserved.
2 • Legal Action
BRADY CENTER LAWSUITS
Supreme Court Justices in Chicago Gun Case Indicate
Support for Allowing Reasonable Gun Laws
“Here every case will be on one side guns, on the other side human life”
— Justice Breyer
T he U.S. Supreme Court heard arguments on March
2, 2010, in McDonald v. City of Chicago, a challenge
to Chicago’s ban on handgun possession. The
Chicago area has the nation’s only bans on handguns,
after the Supreme Court struck down Washington, D.C.’s
In Heller, the Supreme Court listed numerous gun regula-
tions short of a complete ban on handguns that were
“presumptively lawful.” The Court stated that this
includes regulations on gun sales, restrictions on felons
and the mentally ill possessing guns, bans on guns in sen-
handgun ban in 2008 in its 5-4 ruling in District of sitive places such as government buildings and schools,
Columbia v. Heller. That case held that the Second and restrictions on concealed carrying of guns.
Amendment protects an individual right to arms unrelat-
ed to service in a well-regulated militia. At oral argument in the Chicago case, the Justices hotly
debated whether the Second Amendment should be
The Supreme Court is now considering whether to incorporated, but there was general agreement among the
“incorporate” this Second Amendment right so that it Justices with the Brady Center’s position that reasonable
applies to state laws. A ruling is expected by the summer. gun laws should remain permissible even if the Court
strikes down Chicago’s strict ban on handgun possession:
The Brady Center submitted an amicus brief arguing that
whether or not the Second Amendment is incorporated to Firearms regulation is “still going to be subject to
apply to the states, it should not be a bar to reasonable the political process if the Court determines that
government regulation of firearms. [the Second Amendment] is incorporated….”
— Chief Justice Roberts
“Heller allowed for reasonable regulation.”
— Justice Ginsburg
“States have substantial latitude and ample authority
to impose reasonable regulations, [concerning]
rights respecting property, the Cruel and Unusual
Punishment Clause. We look to see what the politi-
cal process does… [W]hy can’t we do the same
thing with firearms?”
— Justice Kennedy
“[W]hen you have the First Amendment, or some
of the other amendments, there is always a big area
where it’s free speech versus a whole lot of things,
but not often free speech versus life. When it’s free
speech versus life, we very often decide in favor of
life. Here every case will be on one side guns, on the
other side human life.”
— Justice Breyer
Gun violence is “a national problem.”
— Justice Scalia
Brady Center President Paul Helmke speaking at a press confer-
ence outside the U.S. Supreme Court following the McDonald v.
City of Chicago argument.
Legal Action • 3
GUNS AND STARBUCKS
The Brady Center Fights
to Make Starbucks Gun Free
O ver the past few months, the Brady Center has
lead a nationwide campaign to fight for the right
of Frappuccino and scone-lovers to sit in a coffee
shop without facing a gun. The Starbucks Coffee Company
has become the subject of national media attention because
when they openly carry in their stores, retail businesses
have the right to set policies that go beyond the minimum
requirements of the law. Indeed, Starbucks can bar a cus-
tomer who is not wearing a shirt or shoes, or someone who
is loud, even though such conduct does not violate the law.
some “gun rights” demonstrators have decided to bring
their openly-displayed guns into Starbucks stores. The In mid-March, at the annual meeting of Starbucks share-
Brady Center responded by launching an online petition holders, where the issue of guns in stores came up
with CREDO Action asking Starbucks to stand up for the repeatedly during a question-and-answer session, the
safety of its customers by barring guns in its establishments. Chairman, President and CEO of the company, Howard
Schultz, made a glaring mistake in discussing Starbucks’
So far, Starbucks has not done so, ignoring the almost gun policy.
35,000 people who have signed the petition, thereby putting
its customers and employees at risk. He said the guns being brought into Starbucks stores are all
unloaded. “I do want to clarify something you said that is
At least two national chains, Peet’s Coffee & Tea and not right,” he told one shareholder. “You can’t walk into
California Pizza Kitchen, have sensibly announced policies Starbucks with a loaded gun. So that’s not the issue. The
prohibiting guns in their stores. Starbucks has refused, issue is, the law allows you to walk in with a weapon that
stating that "we defer to federal, state and local laws and people can see that is unloaded.”
regulations regarding this issue."
Mr. Schultz was incorrect. Only two states require that open
However, state and local laws that allow openly-carried carried guns be unloaded. In 44 states open carried guns
firearms in stores also allow stores (like all property not only can be loaded, but almost certainly are loaded.
owners) to bar firearms from their premises if they so
choose. So Starbucks would also be complying with the Starbucks’ policy endangers its customers and employees,
law if it barred guns from its stores. While Starbucks says it particularly since there are virtually no restrictions on
does not want to bar customers who are abiding by the law who can openly carry guns — no permits, no training, no
proficiency requirements, and no knowledge of the law is
required. And since law-abiding gun owners can drop, lose
or misuse guns, intentionally or unintentionally, allowing
openly carried guns in Starbucks is bad policy.
The issue of openly carrying guns is part of the gun lobby’s
agenda to force guns into every corner of American society.
They seek to do this by “normalizing” the open carrying of
guns in public places. Led by the National Rifle Association,
the gun lobby wants an America where there is nowhere
that you and your family can go to be free from guns,
including churches, airports, and classrooms.
The presence of more guns in a community makes people
less safe, and makes people feel less safe. Studies show that
the more guns there are, the more gun violence there is in
that location.
The Brady Center will continue its fight to keep guns out of
© Columbus Dispatch / Dist. by United Feature Syndicate, Inc. coffee shops and other establishments. G
4 • Legal Action
BRADY CENTER REPORT
Brady Center Report Card —
Failing Grade for President Obama on Gun Issues
O n the anniversary of President Barack Obama’s first year in the White House, the Brady Center released,
President Obama’s First Year: Failed Leadership, Lost Lives, a report assessing the President’s record on guns,
for which he earned the grade of “F.”
The grade of “F” was given to the President because of his failure to fulfill campaign
promises to strengthen commonsense gun laws, and his overall lack of leadership on
the gun issue. He has signed into law harmful, gun lobby-backed legislation, including
allowing guns into national parks. He also has either remained silent or made damaging
statements on gun issues, instead of standing up for the principles he professed to believe
in as a candidate.
President Obama weakened gun laws in spite of a first year in office that was punctuated
by mass shootings, ambush killings of police officers, assault weapon-toting protestors,
and profligate gun trafficking from U.S. gun shops that threatens the stability of Mexico.
The report explains that there is still time for the President to fulfill his campaign
promises to strengthen our nation’s gun laws, and that he can do this by rejecting
the extremist agenda of the NRA, and instead pushing for common sense solutions
to prevent gun violence; positions he voiced belief in as a Senator and a candidate,
and which helped get him elected. G
Brady Center Victories (continued from page 1)
The case stems from the 2006 death of Simone Young Kim, a and “unfairly vague.” The Brady Center assisted attorneys
26-year-old painter who was killed in a random shooting by representing the restaurant owners who brought the suit. The
Jason Coday. Coday was a felon, drug user, and fugitive from law allowed handgun permit holders, who number more
justice, who was prohibited by federal law from purchasing than 257,000 in Tennessee, to take their weapons into places
or possessing a firearm. Yet two days before the shooting, he serving alcohol, providing the establishment makes more
was able to walk into Rayco Sales and walk out armed with a than 50 percent of its profits from food. G
Ruger .22 rifle. The gun dealer claims that Coday took the
gun, after leaving the $200 purchase price on the counter. The 11th Circuit Victory – Federal Appeals Court
store’s two video surveillance systems could have confirmed Win Keeps Guns From Domestic Abusers
Rayco’s story, but the company claims that both systems
failed that day. The gun dealer admits that he did not secure Agreeing with arguments presented by the
guns from dangerous people like Coday, and still does not Brady Center in an amicus brief, the United
“because it’s just too much trouble.” States Court of Appeals for the Eleventh
Circuit, located in Atlanta, Georgia, ruled in
Tennessee Victory – Guns in Bars Law Struck January that the Second Amendment does
Down not protect the right of domestic violence
abusers to possess firearms.
Late last year, a Nashville
judge ruled that a law The ruling in White v. United States set an important
allowing handguns in precedent that the federal Lautenberg Amendment, which
Tennessee bars and prohibits domestic violence misdemeanants from possessing
restaurants is unconsti- guns, remains constitutional after the U.S. Supreme Court’s
tutional. The Court called the law “fraught with ambiguity” decision in D.C. v. Heller.
Legal Action • 5
BRADY CENTER LAWSUITS
The Brady Center is fighting for victims of gun violence and fighting to protect vital gun laws in
courts throughout the country. More information about these cases, and all other Brady Center
lawsuits, can be found at www.bradycenter.org/legalaction.
Brady Center Battles Gun Companies That Supplied
Notorious Gun Trafficking Ring
T he Brady Center is fighting in the courts for Daniel
Williams, who was 16 years old when he was
shot in the stomach and severely wounded while
playing basketball near his home in Buffalo, New York.
Williams was shot with a Hi-Point semiautomatic hand-
weapons. The brief also
urges the court to strike
down this unprecedent-
ed special interest law
as an unconstitutional
gun — a “Saturday Night Special” favored by criminals — effort to strip away the
that was sold by gun dealer Charlie Brown to gun judiciary’s power to
traffickers in an all-cash sale of 87 handguns at an Ohio decide cases that are
gun show. Brown sold James Nigel Bostic and his fellow valid under state law,
gun traffickers a total of 140 “Saturday Night Special” and to deny the right of
handguns in high volume, all-cash sales at the same gun redress to gun violence
show. Brown is the President of MKS Supply, the exclusive victims.
distributor for the gun’s manufacturer, Hi-Point.
The gun company
In motions to dismiss filed in November 2009, the gun defendants delayed the
companies claim that they are immunized from liability case for four years by
for their wrongdoing by the federal Protection of Lawful improperly removing it
Commerce in Arms Act, and that New York law does not to federal court, and
subject them to liability. appealing efforts to
send the case back to Daniel Williams, a former high school
basketball star, who was injured with
In a 78-page legal brief, Brady Center attorneys urge the state court where it was a trafficked gun.
court to reject the gun defendants’ arguments and allow originally filed. As a
the case to proceed to trial. The Brady Center brief points result, the federal court ordered the gun company defen-
out that the Protection of Lawful Commerce in Arms dants to pay over $50,000 in fees and costs to the Brady
Act does not shield gun makers and sellers from liability Center and Connors & Vilardo, the Buffalo law firm that is
for unlawfully supplying gun traffickers with deadly co-counsel for Daniel and his father. G
Brady Center Helps Washington, D.C. Fight Lawsuit
Seeking to Allow Loaded Guns on DC Streets
I n a case that could have dire
consequences for public safety
and national security in the
nation’s capital, the Brady Center is
assisting Washington, D.C. in defend-
right to bear arms independent of any
service in a well-regulated militia.
In the Heller case, Justice Scalia,
writing for the majority of the Court,
all nine Justices agreed that a wide
variety of common sense gun laws
are “presumptively lawful.”
Despite the Heller Court’s recognition
ing its law prohibiting the carrying of stated that although there is an of the constitutionality of laws
loaded guns in public. The case, individual right to bear arms, that restricting concealed carrying of
Palmer v. District of Columbia, was right “is not unlimited.” In particular, firearms, the plaintiffs in Palmer are
brought by the same attorney who Justice Scalia noted that a majority claiming a constitutional right to
challenged Washington, D.C. gun of courts since the 1800’s have carry loaded weapons on the streets
laws in District of Columbia v. Heller, consistently held that “prohibitions on the nation’s capital. A federal
where the U.S. Supreme Court ruled on carrying concealed weapons were court heard arguments on this case
for the first time that the Second lawful under the Second Amendment in January 2010. A decision is
Amendment grants an individual or state analogues.” Furthermore, expected soon. G
6 • Legal Action
BRADY CENTER LAWSUITS
Brady Center Lawsuit Takes On
Utah Pawn Shop That Armed Killer
W ith a court clearing the
way for trial against a
Salt Lake City pawn
shop that sold a pistol grip shotgun
to an underage buyer, Brady Center
Federal gun laws prohibit gun dealers
from selling pistol grip shotguns to
anyone under 21 years of age because
of the special danger these weapons
pose to the public. The lawsuit
attorneys have been working to ready charges that Sportsman’s Fast Cash
the case to be heard before a jury. illegally sold Talovic a pistol grip
shotgun even though Talovic
Sulejman Talovic, who bought the informed the shop that he was only
pistol grip shotgun from pawn shop 18 years old. The Bureau of Alcohol,
Sportsman’s Fast Cash, used it to Tobacco, Firearms and Explosives
murder four people and injure four (ATF) has repeatedly warned gun
more at the Trolley Square shopping dealers that it is illegal to sell pistol
mall on February 12, 2007. A fifth grip shotguns “to any person less
victim was murdered with a different than 21 years of age.” The suit also
weapon. The Brady Center represents charges that the pawn shop failed to
one of the victims, Carolyn Tuft, in a comply with federal records laws
lawsuit against the pawn shop. As requiring additional documentation
described in the complaint, Tuft was from resident alien gun buyers like
shot and wounded and her 15-year- Talovic. Carolyn Tuft with her daughter, Kirsten, who
was killed weeks later in the Trolley Square
old daughter, Kirsten, was killed with shooting.
the pistol grip shotgun the pawn shop After successfully defending the gun
sold to Talovic in violation of federal shop’s motion to dismiss, Brady deposing numerous ATF and gun
gun laws. Center attorneys have assisted in shop witnesses. G
Brady Center Battles the NRA in
Pennsylvania Appeals Court
T he Brady Center is arguing that a Pennsylvania
appeals court should affirm the dismissal of an
NRA lawsuit against the City of Pittsburgh’s
anti-trafficking law. After legal briefing and oral argu-
ments by Brady Center attorneys, a Pennsylvania trial
allowed to require gun owners to notify police when their
guns have been stolen or lost, even though their guns
could be in the hands of dangerous people.
Pittsburgh and other Pennsylvania municipalities have
court previously rejected the NRA’s lawsuit seeking to enacted “lost or stolen” gun ordinances to prevent traf-
strike down Pittsburgh’s ordinance requiring that gun fickers from falsely claiming that their guns were “stolen”
owners notify police when their gun is lost or stolen. after guns they illegally sold are recovered at crime scenes
The ordinance aids law enforcement and law-abiding and traced back to them. These laws provide law enforce-
gun owners by enabling police to quickly investigate and ment with important information that helps them stop
retrieve stolen guns. The Brady Center is continuing to violent criminals and retrieve stolen firearms before they
provide free legal representation to the City. can be used to cause harm.
The NRA appealed the trial court’s ruling to the On July 8, 2009, the Brady Center argued for dismissal of
Pennsylvania Commonwealth Court, which heard argu- the case before Senior Judge R. Stanton Wettick, who, on
ments from Brady Center and NRA attorneys in April July 21, 2009, ruled that the NRA and gun owners lacked
2010. The NRA argues that the City of Pittsburgh is not standing to bring the case. That ruling is now on appeal. G
Legal Action • 7
CLIENT SPOTLIGHT
The Brady Center Remembers
Zeus Graham: 1995-2003
The Brady Center is proud to represent Elizabeth Shirley in her case against the Kansas gun
dealer that sold the gun used to kill her son, Zeus.
My name is Elizabeth Shirley. My 8-year-old son, Zeus, was killed with a
shotgun purchased by a straw buyer. A felon, who was also prohibited from
owning or possessing firearms because of a domestic violence restraining
order, purchased the murder weapon on a September afternoon and used it to
kill my son that night.
My son was in the third grade. He liked to play baseball and soccer, and to
ride his bike and wrestle. He loved to read, especially Harry Potter books. He
loved school, was very bright, and had a silly sense of humor. I miss all those
things about him, and I also miss that I won’t get to know him as an adult. He
said he wanted to be a fire chief, like his uncle, when he grew up, and also a
lawyer and maybe even the president, and I would have loved to know what
he would have become.
In spite of what I’ve gone through, I don’t want your sympathy. I want your
understanding and help so nothing like this happens to another family.
Sympathy won’t bring my son back. I can get all the sympathy in the world,
but nothing is going to change unless the law, and how it is enforced,
changes. My son’s killer should not have been able
to get that shotgun, and I want your help to make
sure that doesn’t happen to another family.
That is why I enlisted the Brady Center’s help in my
lawsuit against the gun dealer who sold the killer
his gun. I don’t want anyone to have to go through
what I did, and I hope my lawsuit and my story
will change the law and save a life. Having to buy
a casket for an 8-year-old is something no parent
should experience.
“I want your understanding
and help so nothing like this
happens to another family.” Zeus Graham, who was 8 years old when he
was killed with a firearm
CX101
8 • Legal Action