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Questions Continue to Surface Concerning the Prohibition on Firearms Sales to Individuals on the Federal "No-Fly" List

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Questions continue to surface concerning the prohibition on firearms sales to individuals on the federal €œno-fly€ list.

January 4, 2016; Evidence continues to mount that prohibiting individuals on the federal governments €œno-fly€ list from purchasing firearms would prevent many innocent Americans from exercising their Second Amendment rights. Following President Obama's push for legislation to prohibit those on the no-fly€ list from purchasing firearms, Republicans pushed back in part because innocent Americans could be placed on the €œno-fly€ list by mistake without any meaningful way to challenge being placed on the list. This fear is not merely hypothetical. The Knoxville News Sentinel recently profiled Dr. Patrick Hackett, a veterinarian that has been on the U.S. Department of Homeland Security€™s no-fly list for eight years. Dr. Hackett has no criminal record and has never travelled to the Middle East, however he shares his name with a known terrorist in the Irish Republican Army that was jailed in the 1970s for planting bombs in Britain and was therefore placed on the €œno-fly€ list. Although he was given a €œletter of duress€ by the TSA that he could present to authorities when attempting to fly, Dr. Hackett still encounters problems and now fears that he will encounter similar problems when trying to purchase a firearm. Nor is the fear of erroneously being placed on the €œno-fly€ list new. In 2008, for instance, 60 Minutes located twelve Robert Johnsons that had difficulty boarding planes because they shared a name with a 62-year-old man that was convicted of plotting to bomb a Hindu temple in Toronto. Better known examples of innocent people erroneously placed on the €œno-fly€ list are Senator Ted Kennedy and folk singer Cat Stevens, now known as Yusuf Islam.

Even prior to the recent push to prohibit individuals on the no-fly€ list from purchasing firearms, the redress procedure for being placed on the €œno-fly€ list has been the subject of litigation. In a case captioned Latif et al. v. Holder, 3:10-cv-00750 (D. Or. 2014), the United States District Court for the District of Oregon held that the government€™s redress procedures for persons on the €œno-fly€ list violated the plaintiffs€™ Fifth Amendment procedural due process rights as well as their rights under the Administrative Procedures Act for failure to provide any post-deprivation notice or meaningful opportunity to contest their continued inclusion on the €œno-fly€ list. The government has announced some changes to its procedures in response to the courts decision, however the ACLU, which originally brought Latif, contends that the changes are insufficient and continues to challenge the governments revised redress procedures. A copy of the court€™s decision in Latif can be found here.

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California's Concealed Carry Laws Currently Under Review

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California€™s Concealed Carry Laws Currently Under Review

Much has been made of California firearm laws in light of the recent tragedy in San Bernardino, California. Pundits have criticized Governor Jerry Brown for vetoing a bill that would have prohibited the sale of weapons with detachable magazines and requiring owners of semiautomatic firearms with detachable magazines to register the firearms. Others have pointed to Californias restrictive firearms laws as proof that legislation cannot prevent tragedies such as the San Bernardino shootings.

Yet another aspect of California’s firearm laws relevant to this tragedy is the restrictive concealed carry laws in place in the state. These laws were examined by the Ninth Circuit Court of Appeals in 2014 in Peruta v. County of San Diego. California law permits the concealed carry of a firearm only after a demonstration of €œgood moral character, completion of a training course, and the establishment of €œgood cause.€ Local authorities are tasked with setting standards for what constitutes €œgood cause€ for a concealed carry permit. The plaintiffs in Peruta challenged San Diegos particular interpretation and implementation of this law as a violation of Heller. €œGood cause,€ according to the San Diego ordinances, did not include a general desire to carry for self-defense.

After a thorough historical analysis of the right to carry a firearm outside of the home, the Ninth Circuit in Peruta concluded that carrying a firearm outside of the home for self-defense is a constitutionally protected right and that California€™s statutory scheme essentially precludes citizens from exercising this right by effectively prohibiting both open and concealed carry. The Ninth Circuit, therefore, held that Californias concealed carry law, as applied by San Diego, violated the Second Amendment. Peruta is currently being reviewed by the Ninth Circuit en banc. A copy of the Ninth Circuit€™s opinion can be found here.

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Supreme Court Denies Review of Assault Weapons Ban

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Supreme Court Denies Review of Assault Weapons Ban

On Monday, December 7, 2015, the United States Supreme Court denied review of the United States Court of Appeals for the Seventh Circuit€™s ruling in Friedman v. City of Highland Park. The case arose out of the City of Highland Parks ordinance prohibiting possession of €œassault weapons€ and €œlarge-capacity magazines, defined as a magazine capable of holding more than ten rounds of ammunition. The ordinance broadly defines an €œassault weapon€ as any semi-automatic firearm that can accept a large-capacity magazine and has one of five enumerated characteristics. The ordinance also prohibits some rifles, such as AR-15s and AK-47s, by name. Plaintiffs in the Friedman case brought suit seeking to overturn the ban as unconstitutional under the Second Amendment and the Supreme Court€™s opinion in District of Columbia v. Heller.

The Seventh Circuit in Friedman concluded the ordinance was constitutional. Selectively using language from the Heller opinion, the Seventh Circuit examined €œwhether [the] regulation bans weapons that were common at the time of ratification or those that have €˜some reasonable relationship to the preservation or efficiency of a well regulated militia, and whether law-abiding citizens retain adequate means of self-defense. €œAssault weapons,€ the Seventh Circuit noted, were not common at the time of ratification and the ordinance leaves other firearms available for self-defense. The Seventh Circuit concluded that states should be permitted to determine whether their citizens should have assault weapons available for use in a militia, and thus left the decision of whether to prohibit certain firearms to the state (or, in this instance, to a municipality).

In their certiorari petition, Mr. Friedman and the Illinois State Rifle Association argued that review by the Court was warranted due to the varied and inconsistent application of Heller by the lower courts. In their dissent to the Court’s denial of certiorari, Justices Thomas and Scalia agreed with the petitioners and argued that the Seventh Circuit failed to follow Heller in upholding the ban. The dissenting justices argued that Heller concluded that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation€ and that the Friedman opinion did not review the ordinance under Hellers mandate. The denial is significant because it marks the continued refusal of the Court to define how far the ruling in Heller extends and leaves the confusion among the circuit courts as to how to apply the Courts seminal ruling in Heller. A copy of the Seventh Circuit€™s opinion can be found here. A copy of the denial of petitioners€™ writ of certiorari can be found here.

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J-M Manufacturing Sanctioned for Spoliation of Evidence

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On November 5, 2015, Justice Peter Moulton granted plaintiff's motion against J-M Manufacturing (hereinafter "J-M") for spoliation sanctions in Warren v Amchem Products, Inc. et al, 190291/14. Plaintiff originally moved to strike J-M'€™s answer (however at oral argument retracted from this position), and requested at the very least, a lesser sanction, such as an adverse inference charge. Justice Moulton ordered that at trial the court should instruct the jury that it is permitted to infer that missing documents would have supported plaintiff’s claims and would not have supported J-M's defense.

Plaintiff'€™s decedent, Richard Warren, was diagnosed with and died from mesothelioma and alleged he was exposed to crocidolite asbestos by performing work on J-M asbestos cement pipes (also known as transite pipes). Plaintiff asserted that in 1997, J-M intentionally destroyed 27 boxes of business records, after fully expecting to be sued and further that it was grossly negligent in losing many other boxes of documents during a move to J-M'€™s new headquarters in 1990. With regard to the alleged intentional destruction, a former employee, James Reichert, who had been working for the company since 1983, testified that he destroyed the documents in 1997 because he had been moving them from place to place and "you just get tired of moving stuff". He was also the person who assisted in the 1990 move.

Plaintiff asserted that as early as December of 1982, when J-M's affiliate, J-M A/C pipe company, purchased the pipe business from Johns-Manville, J-M knew that it would be exposed to future asbestos litigation, citing a 1982 Purchase Agreement and Litigation Support Agreement between the affiliate and Johns-Manville. The Purchase Agreement referenced a need for cooperation in pending and future claims and lawsuits related to its operations and projects. The Litigation Support Agreement also included a list of several Workers'€™ Compensation cases alleging asbestos related health claims. Accordingly, plaintiff asserted that as of December of 1982, J-M should have placed a litigation hold on any relevant documents. Additionally, Reichert and another prior Johns-Manville employee, Ernest Pronske, both testified to a general awareness that asbestos lawsuits were a factor in Johns-Manville'€™s 1982 bankruptcy.

J-M asserted that plaintiff failed to demonstrate that J-M had an obligation to preserve documents. It also asserted that it did not have an obligation to preserve the documents as it had no notice of a credible threat of litigation, and that it disposed of records before J-M was sued and without "notice of a specific case"€. Additionally, it argued that the documents were disposed of negligently, which under New York case law, triggers a requirement that plaintiff show that the documents are relevant.  

Judge Moulton disagreed with J-M. He said "J-M'™s lackadaisical, if not intentional, approach to a litigation hold commencing with defendant’s purchase of a company synonymous with asbestos litigation, and in the face of overwhelming evidence that J-M knew of both the hazards and the long latency period of the disease as far back as 1983 is egregious and in bad faith"€. He also found that even assuming the good nature of Reichert’s destruction of documents, J-M acted in bad faith in failing to instruct him to keep them. He also called defendant's position that some of the documents may be irrelevant or duplicative did not suffice to rebut the presumption of relevance and further that J-M did not demonstrate that plaintiff was not prejudiced by the loss or destruction of the documents. Moulton also cited Voom HD Holdings, LLC v EchoStar Satellite LLC 93AD3d 33, at 42-43 (1st Dept 2012) for the proposition that a defendant need not be served with a complaint or have notice of a specific complaint in order to be sanctioned. This reasoning he held was even stronger in cases of asbestos related disease, which involve long latency periods. Further, he held that J-M actually had notice of specific claims as litigation and Workers'€™ Compensation claims were filed against J-M as early as 1983. He stated that "plaintiff is entitled to the strongest adverse inference" also calling J-M's behavior "€œdisturbing"€.

For more information on asbestos litigation in New York, please contact John Renzulli or Carol Tempesta.

Renzulli Law Firm is pleased to announce that Michael Patrick and Carol Tempesta have joined the firm.

Michael Patrick joins the firm as a Partner. Michael Patrick has a unique practice rooted in intellectual property, licensing, commercial litigation and providing outside general counsel services. Michael Patrick has represented and worked on behalf of well-known businesses and personalities, including, prominent celebrities, fashion icons, multi-national corporations, emerging businesses on the cutting-edges of their respective industries and numerous others. Michael Patrick works side-by-side with the firm's marquee product liability group to provide clients with preventative counseling regarding product litigation, including risk avoidance and management issues.

Michael Patrick is also an innovator and leader in intellectual property, branding and licensing in the firearm industry. Michael Patrick routinely works with major firearms manufacturers and brands in all aspects of their businesses, including the management, protection, development and exploitation of intellectual property portfolios and assets. Michael Patrick is at the forefront of the intersection of intellectual property and the firearms industry such that he is routinely on the cutting-edge of a rapidly changing and shifting legal landscape.

For more information about Michael Patrick, please visit his profile. 

Carol Tempesta joins the firm as Counsel. Carol Tempesta has extensive experience as a litigator representing Fortune 500 companies and their insurers in the defense of high-risk, high exposure, complex litigation involving asbestos, mass torts and products liability cases as both local and national coordinating counsel. Her experience also encompasses a wide range of subjects and areas in commercial and personal injury litigation in both federal and state courts. She has also represented real estate companies in mold litigation and has been involved in exposure cases relating to Benzene and Polychlorinated Biphenyls.

For more information about Carol Tempesta, please visit her profile.

NYAG Announces Settlement with Major Retailers over Sale of Imitation Firearms

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August 4, 2015; On August 3, 2015, the New York Attorney General’s office issued a press release announcing agreements with Amazon, Kmart, Sears, Walmart, and California-based ACTA for violating New York State law concerning the sale of toy or imitation firearms.  An investigation between 2012 and 2014 found that these retailers, and numerous third-party sellers operating through Amazon and Sears, violated New York law concerning the sale of “imitation firearms.” Most of these sales were made online to purchasers in New York. New York Gen. Bus. Law 872 prohibits the sale of “imitation firearms,” which are defined as any device that can “reasonably be perceived to be an actual firearm, air rifle, pellet gun, or ‘B-B’ gun” unless such device adheres to specific requirements set forth in the statute including having bright orange markings along the barrel.  The NYAG’s agreement with the retailers now requires any imitation firearm sold statewide by the retailers to adhere to the stricter, New York City regulation regarding imitation firearms. Among other things, this regulation requires imitation firearms in the city to be “white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink or bright purple,” or made of transparent material that makes it clear that it is an imitation. A copy of the New York Attorney General’s press release can be found here.

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Tennessee Lawmaker Pushes for Repeal of Bill that Disallows Armed Military Personnel at Recruitment Stations

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July 20, 2015; In the wake of the tragic shootings at a military support center in Chattanooga, TN, Rep. Scott DesJarlias of Tennessee seeks to repeal the ban on military personnel carrying firearms at recruitment stations and on base. The proposed legislation is titled "Enhancing Safety at Military Installation Act." The ban is the result of a combination of Pentagon policy and the Posse Comitatus Act of 1878, which prohibits the federal government from using military personnel for domestic law enforcement. In addition to Rep. DesJarlias's proposal, at least six state governors have called for National Guardsmen in their states to be armed in wake of the Chattanooga shooting.

Maine to Allow Concealed Carry Without a Permit

Gov. Paul LePage of Maine signed a bill into law that will allows concealed carry of a pistol or handgun without a permit in Maine. Once it takes effect in October 2015, Maine joins Alaska, Arizona, Arkansas, Kansas, Vermont and Wyoming as "constitutional carry" states that do not require permits to carry a firearm. A summary of the law can be found here.

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