FPC Daily 2A Legal Update – 6/10/21

Gun News

Updates in Gun Seizure, Preemption, FOID Card, and Other Cases in Today’s FPC Daily 2A Legal Update

6/10/21

In today’s FPC legal update, we have many updates from cases involving gun seizures, preemption laws in Pennsylvania, FOID cards in Illinois, and more.


USA v. Raphael Hunt-Irving

Issue: Prohibited persons

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Court: Third Circuit

Action: Opinion

The Third Circuit affirmed the conviction of Raphael Hunt-Irving, who was previously convicted for being a felon in possession of a firearm. During his appeal, he argued that it is unconstitutional to prohibit him from owning firearms due to his previous non-violent felony conviction. The 3-judge panel disagreed, however, saying that his “argument is now foreclosed by our decision in Folajtar,” which is a prior Third Circuit case that “held that the legislature’s designation of an offense as a felony is generally conclusive in determining whether the offense is sufficiently serious to fall outside Second Amendment protections.” In 2019, FPC filed a brief in this case in support of Mr. Hunt-Irving’s Second Amendment arguments, which you can learn more about here. An appeal from this decision could go to either the full Third Circuit or the Supreme Court, although neither court is required to hear the case.


Arwady v. Ho

Issue: Gun seizures

Court: Fifth Circuit

Action: Opinion

About 10 years ago, the ATF seized 165 firearms from Robert Arwady and subsequently charged him with crimes related to gun sales he conducted after his business lost its firearms license. Ultimately, most of the charges against him were dropped, and he was found not guilty on the remaining ones. However, when the ATF returned most of his firearms, he found that many of them “were damaged or missing parts and accessories,” while others “that had been ‘new in the box’ had been removed from their original boxes.” Arwady followed by filing a lawsuit over the government’s handling of the guns, which was dismissed by a district court judge. On appeal, the Fifth Circuit affirmed the dismissal of the lawsuit, saying that “Mr. and Mrs. Arwady fail to state a false-arrest claim” and that “the United States has sovereign immunity on their negligence claim.” An appeal from this decision could go to either the full Fifth Circuit or the Supreme Court, although neither court is required to hear the case.


Thomas v. Kelly

Issue: FOID card delays

Court: Northern District of Illinois

Action: Order granting partial motion to dismiss in part

A judge in Illinois partially granted a motion to dismiss in a lawsuit challenging the slow processing of Firearm Owner’s Identification cards (FOIDs) and carry permits. In partially granting the motion, the judge determined that some of the plaintiffs have standing to sue over their FOID issues (and can stay on the case), but one of the plaintiffs who already received their licenses cannot. The judge also dismissed the plaintiffs’ claims for monetary damages, saying that they “have not alleged that any of the three defendants engaged in any personal acts or made any decisions that would give rise to liability.” The lawsuit will now continue with the remaining claims and plaintiffs.


Marszalek v. Kelly

Issue: FOID card delays

Court: Northern District of Illinois

Action: Order denying motion for preliminary injunction

The same judge from Thomas v. Kelly also denied a motion for a preliminary injunction in another case challenging FOID card delays in Illinois. The motion sought to have the Illinois State Police issue FOID cards to the people affected by the delays while the trial continues. The judge, however, denied the motion, saying that while “the delays are a burden on the Second Amendment rights of the applicants, they are not so severe as to render the process unconstitutional.” The case will now continue to an eventual final decision on the merits.


Philadelphia v. Armstrong

Issue: Preemption

Court: Pennsylvania State Court

Action: Appellant’s Principal Brief

An opening brief was filed in this case challenging Philadelphia’s law requiring the reporting of ‘lost or stolen’ firearms, which the defendant claims violates Pennsylvania firearms preemption law. In 2019, the city announced that it started enforcing the law, and the defendant in that case quickly brought up the state’s preemption law, saying that it prevents the city from enforcing local gun laws. Without explanation, the trial court judge allowed the case to continue, which was followed by this appeal to the Commonwealth Court. The brief filed with the appeals court argues that the city has been told multiple times that it has violated preemption, yet it continues to do so anyway. Because of that, the brief also asked the court “to sanction the Appellees and their counsel for this type of frivolous litigation, and award costs, including attorney fees.” The city will next have an opportunity to respond to the arguments made in the brief.


Roundtree v. Wisconsin

Issue: Prohibited persons

Court: Supreme Court

Action: Cert petition

A petition was filed with the Supreme Court last week that asks it to hear a case that challenges the denial for Second Amendment rights. In 2003, Leevan Roundtree “pleaded guilty to two counts of failure to pay child support for more than 120 days, a felony in the State of Wisconsin,” which now permanently prohibits him from possessing firearms. 12 years later, Roundtree pleaded guilty to possessing a gun while being a prohibited person, which was based on the previously mentioned felonies. In January, the Wisconsin Supreme Court ruled that the state’s felon in possession law is constitutional as applied to him “because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence.” He now appeals that decision to the United State Supreme Court, arguing that the “case is an ideal vehicle to bring order to the judicial chaos without disrupting the status quo” because he only seeks to have the Wisconsin Supreme Court reconsider their decision under a new standard outlined by SCOTUS. A response to the petition is due on July 9th.


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