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  • 5 sue over NICS denial

    ..and
    as usual the .pdf is too large
    sent on request
    “The function of the law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power in power.” – Gerry Spence

  • #2
    Good. The .gov has been exercising way too much power over a "right".

    Got a quick synopsis?
    "I ask, Sir, what is dinner? It is the whole chicken. To pluck the chicken is the best and most effectual way to prepare them."
    Colonel Sanders

    That is a NICE looking bunch of meat!

    I can still find a use for my thumb, even though it no longer has a hole to finger.

    I could have been enjoying his nuts.

    Comment


    • #3
      Case 1:18-cv-01336 Document 1 Filed 06/05/18 Page 1 of 24
      2
      )
      FEDERAL BUREAU OF INVESTIGATION)
      J. Edgar Hoover Building )
      935 Pennsylvania Avenue, N.W. )
      Washington, D.C. 20535 )
      )
      Defendants. )
      ____________________________________)
      COME NOW the Plaintiffs, by and through undersigned counsel, and allege
      as follows:
      PARTIES
      1. Plaintiff Daniel A. Umbert (“Umbert”) is an adult male citizen of the State
      of Florida and is a duly licensed attorney by the State Bar of Florida.
      2. Plaintiff Troy Brent Chodosh “(Chodosh”) is an adult male citizen of the
      State of Texas.
      3. Plaintiff Errol Alexander Eaton (“Eaton”) is an adult male citizen of the
      State of Mississippi.
      4. Plaintiff Chase W. Bickel (“Bickel”) is an adult male citizen of the State of
      Indiana.
      5. Plaintiff Gary James LeComte (“LeComte”) is an adult male citizen of the
      State of Idaho.
      6. Defendant United States of America (“USA”) is a jural entity and a proper
      defendant under 18 USC § 925A.
      7. Defendant Jefferson Sessions is sued in his official capacity as the
      Case 1:18-cv-01336 Document 1 Filed 06/05/18 Page 2 of 24
      3
      Attorney General of the United States of America. As Attorney General,
      Defendant Sessions is responsible for administering and executing the laws,
      customs, practices and policies of the United States, and is currently enforcing
      the laws, customs, practices and policies complained of in this action.
      8. Defendant Federal Bureau of Investigation is sued as the entity that
      oversees and conducts the National Instant Criminal Background Check System
      (“NICS”) and is responsible for enforcing the laws, customs, practices and
      policies complained of in this action.

      Any conviction which has been
      expunged, or set aside or for which a person has been
      pardoned or has had civil rights restored shall not be
      considered a conviction for purposes of this chapter, unless
      such pardon, expungement, or restoration of civil rights
      expressly provides that the person may not ship, transport,
      possess, or receive firearms. (emphasis added).
      13. The vast majority of firearms are purchased through Federally Firearm
      Licensee (“FFL”).
      14. FFLs are required to preform a background check via the National Instant
      Criminal Background Check System (“NICS”) prior to selling a firearm to an
      individual
      15. FFLs are unable to sell to individuals who fail a background check.
      16. Prior to October 23rd, 2015 individuals who received a denial from NICS
      could file an appeal with the FBI.
      Case 1:18-cv-01336 Document 1 Filed 06/05/18 Page 4 of 24
      5
      17. After October 23rd, 2015, the FBI stopped processing appeals despite still
      be authorized to process them.
      18. Individuals who wish to purchase suppressor are required by federal law
      to pass a NICS check because suppressors are regulated by the National Firearms
      Act (“NFA”)
      19. Individuals who wish to purchase a firearm may do so by private transfer.
      20. However, it is illegal under federal law for a person to sell a firearm to a
      prohibited person.
      21. It is customary for private sellers to inquire as to whether a person is
      prohibited in order to avoid criminal liability.
      22. Thus, it is virtually impossible to lawfully purchase a firearm if a person is
      deemed prohibited by the FBI even if the FBI is incorrect.
      b. Suppressors
      23. There are more than 1.7 million suppressors owned by private citizen in
      the United States.
      24. Suppressors are a set of empty baffles that attach to the front of a firearm
      to suppress the report of the firearms to levels that are not harmful or lessharmful
      to human hearing.
      25. They do not “silence” a firearm as seen in the movies.
      26. They are legal in approximately forty-two states.
      Case 1:18-cv-01336 Document 1 Filed 06/05/18 Page 5 of 24
      6
      27. The Second Amendment applies to all items which are in common use
      for self-defense. See Heller v District of Colombia, U.S. App. D.C. 314, 679 F 3d
      1244 (2011).
      28. This principle applies to items such as magazines that are useful to selfdefense
      even though they fail the definition of an “arm.” Id.
      29. The D.C. Circuit has found that AR-15s are in common use by private
      citizens for lawful purposes.
      30. The Second Circuit has found that AR-15s are in common use because
      “four million units of a single assault weapon, the popular AR–15, have been
      manufactured between 1986 and March 2013”. See New York State Rifle & Pistol
      Ass’n, Inc. v. Cuomo (“NYSRPA”), 804 F.3d 242, 254 (2d Cir. 2015).
      31. Similarly, suppressors are in common use typically used for lawful
      purposes. Thus, they are afforded Second Amendment protection.
      32. Suppressors can be attached to firearm at all times.
      33. In a self-defense scenario it is generally infeasible to take the time to put
      on hearing protection.
      34. Hearing protection makes it more difficult to ascertain the location of a
      home invader.
      35. Thus, a suppressed firearm is the better option for home defense.
      36. Home defense is the core right protected by the Second Amendment.
      Case 1:18-cv-01336 Document 1 Filed 06/05/18 Page 6 of 24
      7
      37. Training with a firearm is part of that core right. See Ezell v. City of Chicago,
      651 F.3d 684 (7th Cir. 2011).
      38. When defending oneself with a handgun in a confined area such as a house
      it is common to suffer temporary deafness due to the sound a firearm makes in
      an enclosed space.
      39. A suppressor muffles the sound a firearm makes in an enclosed space to
      levels that will not deafen a person and lead to permanent hearing loss.
      40. Additionally, firearms training can cause permanent hearing loss over
      time.
      41. Suppressors alleviate this risk by reducing the sound a firearm produces
      to levels that are not harmful or less-harmful to human hearing.
      42. Suppressors are regulated under the NFA and defined as a firearm. In
      order to purchase a suppressor, first it must be legal in the state where the
      plaintiff resides.
      43. Eaton and Umbert both reside in states where suppressor ownership is
      legal as long as the ownership complies with federal law (i.e., approved by the
      ATF and registered in the National Firearms Registration and Transfer Record).
      44. A prospective suppressor purchaser must then file an application on ATF
      Form 5320.4 (commonly referred to as a Form 41), answer a number of questions
      1 This Form 4 is available on the ATF’s website, found at:
      https://www.atf.gov/firearms/docs/fo...rationfirearm-
      atf-form-53204/download
      Case 1:18-cv-01336 Document 1 Filed 06/05/18 Page 7 of 24
      8
      regarding whether the person is a prohibited person, affix a photograph of
      themselves, and submit fingerprints to the ATF.
      45. These applications can take anywhere from 8 months to over a year to
      approve and transfer the suppressor (or other NFA-regulated firearm) to the
      applicant.
      46. The FBI conducts the background checks for the ATF with respect to a
      Form 4 application. There is no lawful way to transfer a suppressor to an
      individual without submitting the Form 4 and submitting to a background check
      by FBI NICS. In other words, Plaintiffs Eaton and Umbert could not purchase
      a suppressor from an individual without having to go through the process of
      filing all necessary forms with the ATF, waiting the unreasonable amount of time
      it takes to review the application, and receiving a background check through FBI
      NICS, and then (hopefully) approval from ATF.
      47. After the denial, the Plaintiffs Eaton and Umbert are now left with having
      waited an unreasonable period of time with their application being processed,
      then denied, and now their appeals of the erroneous denial will take an unknown
      amount of additional time. Afterwards, assuming the appeals go through and
      their information is corrected and the FBI “approves” their background check,
      Eaton and Umbert will be forced to reapply and wait an additional number of
      months for the transfer by the ATF.
      c.
      “The function of the law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power in power.” – Gerry Spence

      Comment


      • #4
        Thanks Norm DeGuerre. That is interesting. I did not expect the lawsuit to be so broad in it's scope.
        "I ask, Sir, what is dinner? It is the whole chicken. To pluck the chicken is the best and most effectual way to prepare them."
        Colonel Sanders

        That is a NICE looking bunch of meat!

        I can still find a use for my thumb, even though it no longer has a hole to finger.

        I could have been enjoying his nuts.

        Comment


        • #5
          Mr. P.o.P.
          sometimes, if you get this way agin
          we might speak for several hours on all these issues ..

          be sure to get a room, the conversation may run over several hours
          “The function of the law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power in power.” – Gerry Spence

          Comment


          • #6
            I'd like to get out your way again, just not sure when as things have been a bit busy lately. Being on call every other week puts a crimp in my travel right now, though the extra money is nice.
            "I ask, Sir, what is dinner? It is the whole chicken. To pluck the chicken is the best and most effectual way to prepare them."
            Colonel Sanders

            That is a NICE looking bunch of meat!

            I can still find a use for my thumb, even though it no longer has a hole to finger.

            I could have been enjoying his nuts.

            Comment

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