[The Expert]

I am reposting this from the Machine Gun forum, as it will be of interest to most people interested in RKBA:



Governor Parnell signed HB 319 into law today, which makes CLEO signatures on ATF Form 4 mandatory within 30 days for all applications submitted by qualified applicants.

The relevant text:

Sec. 18.65.810. Execution of federal firearms forms. (a) The chief
administrative officer of a municipal police department for a person who resides in the
municipality and the head of the Alaska state troopers for a person who resides in the
state but does not reside in a municipality with a police department shall execute
within 30 days federal firearms forms required to be submitted by the person as a
transferee of a firearm if the person is qualified under state law to possess the firearm.

Alaska now becomes, to my knowledge, the first "shall issue" state, with respect to NFA weapon transfers.

Kudos to Representative Mike Hawker who sponsored this law, and Governor Parnell who signed it! It's great to live in the most gun-friendly state in the Union!!

 

[The Expert]

A completed BATFE Form 4 that is also signed by the Chief Law Enforcement Officer of an applicant's town of residence is required before ATF will process an NFA transfer, machine gun, SBR, etc.

That is required by the federal National Firearms Act. The problem is that there is no way to force a CLEO to sign a Form 4....it is entirely discretionary under federal law. So many people who want to purchase a machine gun in states where such possession is otherwise legal are unable to buy the gun simply because the police chief hates private ownership of NFA weapons. The situation is analgous to the "May-Issue" CCW permit problem.

This law in AK makes the signature of the CLEO mandatory within 30 days of submission of the application for signature, unless specific legally defined reasons to deny the application exist.

Hope this helps clear up any confusion.

 

[The Expert]

Your sheriff is demonstrating his ignorance of how our countries legal and political systems work. Printz v United States is the SCOTUS opinion from 1997 in which the court held that those portions of the Brady Act which mandated that local officials comply with a federal mandate was unconstitutional, as the commandeering of local officials by the feds violated the 10th Amendment.

Your sheriff's error in your case stems from the fact that he is commanded to perform a duty not by federal law, but by a state statute. He doesn't have a constitutional leg to stand on. Make sure he pays the legal fees you incurred in obtaining your writ of mandamus that compelled him to perform his statutory duty.

If you get a chance to needle him about this matter, you might suggest to him that you hope he trains his deputies to a higher standard of knowledge about constitutional law, especially as it pertains to individual liberties and the Bill of Rights, than he personally has demonstrated.

 

[The Expert]

LOL, Ak_milsurp!

I don't think you have anything to worry about, kiwkrnu. A writ of mandamus is specifically issued for just such a situation, that is when a public official has a clearly defined statutory duty and fails to perform said duty. You have a clearly worded statute that explicitly establishes a duty on the part of the sheriff.....I don't think the sheriff has a chance in front of the judge, no matter what his legal background. And the sheriff knows this. If the Sheriff brings up Printz v US, then you now know exactly how to respond.

Personally, if the guy is a lawyer, then I think he is bluffing you.....he will cave as soon as you file for the writ. Be sure to address the waste of taxpayer's money with your local elected representative who appropriates the budget for the Sheriff's Dept.....Those thousands of dollars wasted by the county to pay for your attorney's fees will no doubt engender a conversation with the Sheriff come next budget time.

 

[The Expert]

Well...the NRA-Institute for Legislative Action (ILA) is most certainly NOT the group to handle this. This isn't their mission.

Instead try contacting the NRA proper directly and do it quickly. At the very least, file a motion of intent to appeal with the court, as you probably only have a few days to do so. This motion is likely a fill-in-the-blank document of one page. This will keep your options open to appeal. Then contact your state gun association, as well, and contact your local newspaper, too. Nothing the papers like better than to find an official who is breaking the law.

BTW, I tried to download the audio, but it said the available bandwidth was exceeded. This is a shame, as I would have liked to hear your argument and the judge's reasoning.

I have asked another member to take a look at this. I hope will lend us the benefit of his expertise.

 

[The Expert]

BTW...what is the Belle Meade PD complaint against your handgun permit?

 

[The Expert]

Interesting situation. What grounds did the State of TN use to justify a suspension of your CCW, especially as you were never charged with a violation of the law?

Also, I find the federal case to be interesting, especially regarding the defendants argument that the first officer who detained you let you go , even though he could "not could conclude that this weapon comported with a handgun carry permit," and "allowed [you] to continue walking, but kept [you] under surveillance" so he could contact Ward, his supervisor.

TCA 39-17-1351

(t) Any law enforcement officer of this state or of any county or municipality may, within the realm of the officer's lawful jurisdiction and when the officer is acting in the lawful discharge of the officer's official duties, disarm a permit holder at any time when the officer reasonably believes it is necessary for the protection of the permit holder, officer or other individual or individuals. The officer shall return the handgun to the permit holder before discharging the permit holder from the scene when the officer has determined that the permit holder is not a threat to the officer, to the permit holder, or other individual or individuals provided that the permit holder has not violated any provision of this section and provided the permit holder has not committed any other violation that results in the arrest of the permit holder.


I find it interesting to note that TN law requires that an officer, after disarming a handgun carrier during an investigatory stop, must "determine that the permit holder is not a threat to the officer, to the permit holder, or any other individual or individuals, provided that the permit has not committed any other violation that results in the arrest of the permit holder" before he can return a handgun to a permit holder and release him. I feel this is an important point.

Prior to letting you go, the first officer was, in effect, required by law to determine that you posed no risk to yourself or anyone else, and that you had not violated the law, else he would not have been legally able to return your weapon. By letting you go free and returning your weapon, the first officer in effect made the determination that you were violating no law and posed no threat to anyone. As he undoubtedly informed Ward of his action in releasing you, this nullifies one part of Ward's defense of his subsequent actions, specifically that his actions were due to "reasonable concern" for the "safety of the public", and that he was reasonably "suspicious that [you] were acting unlawfully." It will be difficult for him to articulate the reasons for his suspicions, having just received a report from a fellow officer of the results of the first officer's investigation which revealed no violation of the law.

You are foolish, IMO, if you think you can argue this case successfully in federal court on constitutional grounds pro se. Federal constitutional questions require great finesse to argue effectively, and you must get an experienced lawyer to help you, lest you get trumped on some obscure procedural grounds. Just read the recent opinion of the federal magistrate ruling against the Montana Shooting Sports Association bid to overturn the GCA if you don't believe how complex these questions are. I hope you don't think you are a latter-day Clarence Earl Gideon, because if you do, it is likely that you will be outmaneuvered by the opposing attorney, and lose before the evidence is even heard in court.


Having said all this, get a good attorney and best wishes for a successful conclusion to your case!