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Why California Will Lose the Linton v. Becerra Gun Rights Case


Posted by: GRW Chief Editor on Monday, January 7, 2019 at 11:59:00 pm Comments (0)

Understanding The Linton v. Calif. Attorney General Xavier Becerra Case

When Chad Linton and Paul McKinley Stewart fought for and successfully had their minor felony convictions from the 1970s and 1980s in Washington and Arizona overturned, their records were stricken from the books and that should have been the end of painful lesson that neither of them will ever forget. To their shock though, California discovered their past transgressions and has barred either of them from ever owning a gun... despite the US Constitution preventing the state from doing so.

Chad Linton

In 1987, Chad Linton was 18 years old and stationed at a US Naval base in the state of Washington taking weekend liberty away from the base when he was spotted speeding by a police officer, who attempted to pull him over. Being late for his check-in and at this point quite close to the base, he made the foolish decision to speed up to try and make it back before the officer could catch him. After a short time, he realized this was a bad idea and pulled over. He was arrested without further incident.

He then learned that in the state of Washington, evading the police even for a brief time is a felony. He spent the next 7 days in jail and upon release, served mandatory probation and some community service. The case was left open-ended and no felony was ever officially entered into his record.

When he was sentenced, the Washington State court judge, who was sympathetic to Mr. Linton, told him that he would not want to see his military career destroyed over the incident. He told him that if he successfully completed all terms of his probation, that the court would reduce the matter to a misdemeanor and have the matter discharged from his records. Chad put the matter behind him believing that this had in fact happened and was seemingly confirmed to him the following year when Linton received a certificate of discharge, showing that he successfully completed his probation, and which included a statement that “the defendant’s civil rights lost by operation of law upon conviction be HEREBY RESTORED.”

He shortly afterward moved back to California and in the ensuing 30+ years stayed out of trouble with the law. He bought several guns during this time, undergoing multiple background checks and fingerprint-based database queries of law enforcement records which never flagged him as being a prohibited person.

However, in December of 2015, he attempted to buy another gun and this one finally showed him as being prohibited from possessing a firearm — by the state, not the federal government. To clear up the matter, he traveled back to Washington and hired a lawyer to formally request that his record be expunged. The judge looked at the facts of his case and decided that Chad was no danger to society, clearing the felony from the books and granting him his right to owns guns back. It's worth noting that he didn't necessarily have to actually do this since the FBI records at the time didn't show him as actually being a felon. The state of California had been relying on an incomplete report on the matter showing that he was charged with a felony and that he pled guilty. They never dug any farther to find the full resolution of the case in Washington.

At this point, He is not only not a felon but has never been a felon in the eyes of any court in the country. Additionally, he now has a court order from the originating state proclaiming him as perfectly legal to purchase and own guns. A copy of the order was then sent directly to the FBI by the judge as a further effort to proclaim Linton's innocence.

Despite this, the California Attorney General's office decided that since they see an offense that qualifies as a felony on the old copy of the arrest record that they found and that since he pled guilty, he is, therefore, a felon as far as they're concerned, regardless of having been exonerated by the original state where the offense happened... in clear violation of the Full Faith and Credit Clause of the US Constitution.

In October of 2016, Mr. Linton then voluntarily underwent a Personal Firearms Eligibility Check (PFEC) with the California DOJ to confirm his eligibility to purchase and/or possess a firearm. Based upon this check, the DOJ’s Bureau of Firearms informed him that he was, in fact, eligible both to possess and purchase firearms, based upon a search of California’s records. The PFEC form indicated, however, that the actual purchase of a firearm would involve the search of a federal database by the DOJ. This was obviously not an issue since the federal database did not show his as a felon and did not bar him from owning guns.

In October of 2018, Chad once again attempted to purchase a rifle that was legal to possess in California but was again was denied the right to purchase. In November, the California DOJ informed Linton that he was ineligible to purchase or possess firearms pursuant to its review of state and/or federal records which purported to show that plaintiff was a “Felon: Any person who has been convicted of a felony under the laws of the United States, of the State of California, or of any other state, government, or country.” However, the only felony conviction he had ever received was the one in Washington State, which by that time had already been vacated and for which his firearms rights specifically had been restored to him by the Washington court.

Proving the incompetence of the California DOJ, Linton then requested and underwent a “Live Scan” fingerprint-based background check request with the department directly. Within a few days, the results of that scan were returned to him and showed no felony convictions in his history. 

He then mailed a copy of the exoneration letter from Washington to the DOJ, which they neglected to respond to at all. He waited close to a year and finally just sent the letter again. The response he got was cryptic and curious, stating that “the entry in question cannot be found on your California criminal history record, therefore, no further investigation is required.”

Believing he might have finally cleared up the bizarre behavior of the DOJ, he decided to try one more time to buy a gun —  and was again denied by the DOJ. In March of 2018, the inept DOJ sent Linton a letter stating that the attempted firearm purchase was denied due to the presence of a prior felony conviction — obviously referring to the now-vacated Washington arrest.

They next sent California's Department of Justice agents to Mr. Linton's house with a search warrant under the Armed Prohibited Persons System (APPS) program to seize all of his guns. Mr. Linton was not home at the time, but his wife was. Upon arrival and upon learning what they were there for, Mrs. Linton retrieved the court order from the judge in Washington who granted him his right to own firearms back and showed it to the agents. For their part, the agents were sympathetic and understanding and called the Deputy Attorney General Robert Wilson's office to explain the situation. Wilson told them that it didn't matter and that they were to take the guns anyway, so they reluctantly confiscated every gun he had, including the antique shotgun that his grandfather had given him. One agent later sent an email to his bosses protesting the actions they were forced to perform and supportive of Linton's rights to his guns.

Ridiculously, when Mr. Linton asked the Attorney General's office how he would go about getting his firearm rights in California restored, they told him that it would require a presidential pardon since there is no other process for it to happen by. This is obvious nonsense since he is not now nor has he ever been a felon and there would be nothing to pardon — not to mention the fact that US presidents cannot pardon state crimes anyway, only federal ones.

Paul Stewart

As an 18-year-old in Yuma County, Arizona in 1976, Paul made the poor decision one night to climb a fence and enter an unlocked truck owned by the telephone company to steal some tools. Like Chad above, he performed his sentence and cleared the matter sufficiently to have it downgraded from a felony and later stricken from his record entirely.

Despite this, the state of California is still defiantly refusing to restore Mr. Stewart's gun rights to him.

He later made a connection with the lawyers representing Mr. Linton and has joined the case as a co-plaintiff.

The Lawsuit

Attorney George Lee from the law firm of Seiler, Epstein, Ziegler, & Applegate, LLP out of San Francisco is representing both plaintiffs. The firm is further joined by:

Named as defendants in the case are:

  • Attorney General Xavier Becerra
  • Acting DOJ Bureau of Firearms Chief Martin Horan, and
  • Deputy Attorney General Robert Wilson

Why California Will Lose

  1. California's big problem? This is a direct violation of the Full Faith and Credit Clause outlined in detail in Article IV, Section 1 of the US Constitution. It specifically states that all states must respect the "public acts, records, and judicial proceedings of every other state."

  2. But, it gets worse. Since California was accepting exonerations from judges within its own borders but not out of state judges, it then became guilty of violating the Privileges and Immunities Clause in Article IV, Section 2, Clause 1, which prevents states from treating citizens of other states in a discriminatory manner.

  3. Additionally and similarly, they violated the Privileges or Immunities Clause in the Fourteenth Amendment in Section 1, Clause 2, which states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

  4. Since California systematically half-asses everything except its own incompetence, it then compounded the massive legal blunder by unlawfully confiscating Mr. Linton's existing legal firearms and hence became guilty of violating the Fourth Amendment to the US Constitution.

  5. And finally, does it really need to be pointed out that California's zeal to prevent as many people as possible from owning guns has resulted in a blatant violation of the Second Amendment?

We stated at the beginning of this section that the state will lose; however, we need to keep in mind that this is Califonia we're talking about. The plaintiffs could, in fact, be the ones who lose, but since the case has ballooned to national attention our strong suspicion is that it will be appealed if that happens and appealed again if necessary right up to SCOTUS if need be. Past US Supreme Courts would probably pass on taking the case, but we've talked before about how this new high court might just take such a case. The net result is that the overall likelihood of this failing all the way up to SCOTUS and then failing even there is just not very high.

The bulk of this information comes from the Firearms Policy Coalition. The FPC is looking for anyone who has had a similar situation, where their gun rights were restored by another state but the reinstatement is not being recognized by the state of California. If your case fits this description, please contact the FPC/FPF Legal Action Hotline at https://www.firearmspolicy.org/hotline or (855) 252-4510 (available 24/7/365) immediately. 


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Second Amendment Preservation Ordinance


Posted by: GRW Senior Staff on Sunday, July 22, 2018 at 12:00:00 am Comments (1)

The Second Amendment Preservation Ordinance

The Second Amendment Preservation Ordinance is an ordinance aimed at sending a clear message to gun control advocates about the gun rights specifically enumerated in the US Constitution, and the idea appears to be catching on in the states of Oregon and Illinois.

It’s unclear where this movement started, but some sources point to Oregon. Oregon counties have been passing Second Amendment Preservation Ordinances since 2013. In Wallowa County, a man named Leo Castillo wrote the original ordinance and got it passed through his county’s board of commissioners. Wheeler County followed in 2015 and Curry County in 2016.

The statewide effort is being coordinated by Rob Taylor, a Coos County resident who leads the movement’s Committee to Preserve the Second Amendment.

Taylor, however, found that a different path to getting The Second Amendment Preservation Ordinance, or SAPO, passed would be necessary. Initially meeting stiff resistance from the Coos County board of commissioners when it was presented to them in 2015, Taylor then took the issue to the voters, who passed a ballot measure that allows the county to restrict funding for gun laws passed by state lawmakers.

Taking a page from the playbook of California sheriffs who refuse to enforce immigration laws, Taylor quickly realized that more right-leaning sheriffs in other parts of the nation could use the same strategy to ignore oppressive gun laws, as he envisioned legislation that could allow them to do just that. Since then, Taylor has helped several other counties file similar ballot measure proposals.

This single county ballot measure in 2015 has blossomed into a full-blown movement. Gun Rights Watch now dutifully maintains a series of maps of Oregon and Illinois which are updated routinely, showing the advancement of this ordinance, and a continuing march for gun rights across both states. We feel confident that many more states will follow, as news of the SAPO’s advance hits the news media more and more often.

 

Renewed Interest in 2018

This now brings us to reflect on how the SAPO has picked up steam this year, with the filing of bill IP 43, which is yet another “assault weapons” ban. before I explain how IP 43 has caused the SAPO movement to pick up steam, allow me to go off on a tangent for moment:

I put quotations around those 2 words because there is no such thing as an assault weapon. An assault weapon, as the meaning of which can be inferred from the language of the plethora of anti-gun bills that have been put forward and passed since the Assault Weapons Ban of 1994, is any gun which you don’t like because it looks big and bad and scary. If it has a bump stock, can hold more than ten bullets, is painted black, or has a tacky skull embossed on the handle, someone will use that as an excuse to call it an assault weapon. An assault rifle is a real thing. An “assault weapon” is a non-descriptive, derogatory term that some liberal politician made up because someone’s gun looks big, bad and scary.

And by the way, being big and bad and scary is exactly what a gun is supposed to do. As any self-defense expert with some familiarity with firearms will tell you, the most protective thing about a gun is simply its appearance. A gun is most useful, and most often deters violent crimes, by merely displaying it. I’m fully convinced that guns prevent many more crimes simply by being visible, much more often in fact than actually firing one at a bad guy.

Okay, rant over.

IP 43 was filed on March 22 in Oregon. So far, instead of taking any “assault weapons” off the streets, it has instead renewed the interest in SAPO. Several counties have filed and even passed the ordinance by now; check our website or facebook page. I won’t try to tell you which ones have passed it in this post because the number changes rapidly.

Illinois apparently has taken up the cause of gun rights legislation with gusto now too. David Campbell, a print shop owner from southern Illinois, and Bryan Kibler, a prosecutor, have spearheaded a push to bring a version of SAPO to Illinois; the Illinois SAPO doesn't actually have any teeth, however, it's merely a statement that residents of Illinois county can make, and a message to the local sheriff of that county that they would prefer he didn't enforce federal gun laws. Their county of Effingham adopted the resolution on April 16th, and word spread quickly via conservative news sites and gun blogs. This started a chain reaction of Illinois counties fanning the flames of liberty by adopting the resolution and further popularizing this legislation; again, be sure to check the Gun Rights Watch website and Facebook page for our constantly updating map of the Illinois Gun Sanctuary Counties.

Coos County – First to Enact the Ordinance

Initially first enacted in Coos County, Oregon, the ordinance seems to have touched off a string of ballot initiatives in several counties to put the measure to a vote. Coos County voters signaled their overwhelming approval of the ordinance with a 60 percent majority and simultaneously showed their disapproval of Senate Bill 941, which was signed into law by Governor Brown on May 11,2015.

(SB 941, the Oregon Firearms Safety Act, is yet another unconstitutional law which adds the requirement of a background safety check for firearm purchases. Unfortunately, a Google search for "SB 941" showed me links to several news stories about SB 941 being proposed, placed on a ballot, or even passed in many other states besides Oregon.)

Douglas County Hearing

In Douglas County, the County Board of Commissioners voted unanimously on June 20th to place the Second Amendment Preservation Ordinance on the ballot this November.

Following a public hearing where residents gave the expected mixture of opinions for and against the legislation, supporters of the measure spoke of the previously mentioned need to send a message about the gun rights that are stated clearly in the constitution, and gun control advocates and other opponents of the ordinance said that it would place sheriffs in the moral quandary of having to decide whether to enact the will of the people, or whether to follow blatantly unconstitutional state and federal gun laws. They also said that (drum roll please...repeat it with me now, in your best trance-inducing mantra) gun regulations are necessary to protect the children.

It seems to me that the children would be best protected by a trained parent with a firearm rather than left to the caprices of the state which seems to believe that taking the guns away from only the good, law-abiding people will somehow make the children safe (because bad guys don't obey laws, especially gun laws, remember? That's what makes them bad guys...).

And now, Columbia County

Columbia County, Illinois has been working to get the SAPO enacted since at least early 2016. Earlier this year, enough signatures were collected by petition filer Chris Brumbles, so the people of Columbia County, Oregon can now help their county pass a Second Amendment Preservation Ordinance like the people in Coos County did.

So, what is the Second Amendment Preservation Ordinance?

This ordinance appears to be a resolution that is legally binding in some places, such as Oregon, and not so in others such as Illinois, depending upon the wording of the particular document. It would allow sheriffs in the counties where it passes the right to decide whether or not the citizens of their county need to observe state and federal gun laws if those laws are deemed by the county sheriff to violate the second amendment. This measure actually supersedes local and national gun laws in those places where it is binding, deferring instead to the language of the Second Amendment of the Constitution of the United States, as all US citizens should be rightfully allowed to do.

The principal purpose of the ordinance in all cases is to send the message about how the voters of a county feel about their Second Amendment rights, primarily to the sheriff of the county but also to the balance of the county government.

In addition to the right to keep and bear arms, this ordinance also allows the free manufacture, sale, and purchase of firearms, firearm accessories and ordinance. SAPO is intended to not only comply with and advocate the spirit of the Second Amendment, it also further affirms the Ninth Amendment of the US Constitution, which states that the ancillary firearm rights mentioned above shall never be denied or prohibited by the misinterpretation of any other amendments. It then also reaffirms the Tenth Amendment of the US Constitution, reminding voters and legislators that any powers that the US Constitution doesn't reserve specifically for itself or specifically deny to states, are left by default to the states.

Also, SAPO mentions the Oregon state constitution, illustrating that the state document also reiterates the Second Amendment and the relevant parts of the Ninth Amendment where it pertains to gun rights.

Finally, SAPO declares that no county government shall authorize or appropriate anything which contradicts the rights outlined in the above mentioned amendments, such as more government bureaucracies designed to administrate registration requirements for firearms, or background checks.

Simply put, SAPO makes it clear that there should be no firearm registration or background checks, as the framers of the US Constitution intended.

The Future of the Second Amendment Preservation Ordinance

To summarize, it seems clear that an honest-to-goodness movement is now underway, at least in Oregon and Illinois. What remains to be seen is whether the SAPO can be brought to the other 48 states of our great nation. So far, internet searches for the Second Amendment Preservation Ordinances only turn up news articles from the two aforementioned states, but we at Gun Rights Watch are hopeful that more states will jump on the bandwagon.