The Times West Virginian

West Virginia

September 28, 2012

Judges refer gun-control lawsuits to W.Va. court

CHARLESTON — West Virginians who want to carry guns on city property and challenge other municipal firearms ordinances as unconstitutional must first bring their cases to state court, federal judges have ruled, but the future of these legal challenges appeared unclear Thursday following the death of the gun-rights advocate and lawyer who helped file them.

U.S. District Judge John T. Copenhaver Jr. has redirected a lawsuit against Charleston, Dunbar and South Charleston, as a number of its allegations invoke the West Virginia Constitution and state law. His Sept. 20 ruling follows one by U.S. District Judge John Preston Bailey that similarly referred claims against Martinsburg to state court last year.

Each judge concluded that the lawsuits could return to federal court with any issues left unresolved. The 4th U.S. Circuit Court of Appeals upheld Bailey’s approach to that case in June.

Copenhaver’s ruling also dismissed a dozen of the arguments against Charleston’s ordinances. Three sought to allow firearms at the Sternwheel Regatta festival, which no longer exists. The others challenged the capital city’s ban on handgun sales involving people who have received voluntary mental health treatment or have any criminal charges pending.

Copenhaver found that those bringing that lawsuit failed to show the necessary personal stake to press these claims. He left intact more than two dozen allegations. Several target Charleston ordinances that require a 72-hour waiting period for a handgun purchase and then limit them to one per month. They also challenge each municipality’s ban on weapons on its property.

The judge explained why he found the plaintiffs had standing to pursue those claims.

“If the court concludes that no credible threat of prosecution exists, it all but invites the individual plaintiffs or others to enter city-owned property with a firearm in order to figuratively gain entry to the federal courthouse,” his ruling said. “That approach is problematic for a variety of reasons, not the least of which includes public safety.”

The West Virginia Citizens Defense League filed both lawsuits, aided by individual gun rights advocates and a firearms dealer in the Kanawha County-aimed lawsuit. But how these challenges will proceed is unclear following the death of James Mullins, the league’s founder and its lawyer in both cases.

The 30-year-old had also lobbied the Legislature, seeking to allow guns at the Capitol, and ran unsuccessfully for the state Senate as a Republican in 2010. After recently moving to Virginia, with plans to advocate on gun issues there, Mullins died of a heart attack late last month, according to an obituary posted online by the Virginia Citizens Defense League.

Copenhaver noted in his ruling that Mullins’ death had complicated efforts to provide notice of his legal findings. Others involved in Mullins’ West Virginia group did not respond to requests for comment Wednesday and Thursday. The circuit courts for Kanawha and Berkeley County had no cases filed by the group as of Wednesday, nor did the state Supreme Court.

The West Virginia Citizens Defense League also helped to file a lawsuit against Wheeling after a December 2010 run-in between city police and Keith Campbell and his father, Larry Campbell. The pair was eating at a fast food restaurant when they allege officers harassed them over the semi-automatic pistol that Keith Campbell was carrying openly in a hip holster. U.S. District Judge Frederick P. Stamp Jr. dismissed the Campbells from that case Aug. 28, citing an out-of-court settlement. But Stamp has also threatened to dismiss the league’s claims after it failed to provide testimony as required in May or otherwise take part in the case.

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