From: [a--y--r] at [nmsu.edu] (Nosy)
Newsgroups: talk.politics.guns,misc.legal
Subject: Federal Judge Denies US Motion In Brady Action
Date: 12 Sep 94 14:56:43



	Reproduced from "Gun Week", 9 Sept 1994 without permission.
	All spelling errors mine in transcription.

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	The government lost another round in the court battles over
	the Brady Law when Federal District Court Judge John M. Roll
	on August 23 denied its motion to limit his earlier injunction
	ruling in _Mack vs. US_.

	The decision increases the likelihood of a government appeal
	in either or both of the Arizona or Montana federal court 
	decisions it lost. The appeal would take the issue to the 
	appelate level and possibly even to the Supreme Court.

	The government sought to limit the scope of Judge Roll's
	June 28 ruling that the record check provisions of the
	Brady Law violated both the 5th and 10th Amendments. The
	earlier decision was written in such a way that it extended
	the injunctive relief to Chief Law Enforcement Officers (CLEOs)
	beyond the State of Arizona, and the judge made it clear with his
	latest ruling that he meant to do exactly that.

	The government had argued that the judge's injunction against 
	any enforcement of the Brady Law background check mandate 
	could be read to prohibit enforcement against any CLEO, and
	that this was beyond the court's power. The government cited
	case law to show that the relief had to be limited to protecting
	the plaintiff in the case alone, not sheriffs who were not
	involved in the suit.

	Judge Roll denied the government's motion, stating that he indeed
	meant the order to forbid all enforcement and arguing case 
	citations that showed he had the legal power to extend his
	injunction nationwide.

	He found that the case law cited by the government was limited
	to preliminary injunctions, while his decision was a permanent
	injunction which determined the actual winner of the case.

	David T. Hardy, attorney for Graham County  Sheriff Richard
	T. Mack, the plaintiff in the case, said the government is
	now more likely to appeal the Arizona decision and/or a 
	less far-reaching similar decision in a Montana federal
	court. Both courts are part of the 9th Circuit Court of
	Appeals district. Conceivably, if the government continues
	to press for enforcement of the background check requirement,
	the issue could eventually be decided by the Supreme Court.

	In other similar decisions in Montana, Mississippi and Vermont,
	federal judges have also ruled that the background check mandate
	violates the 10th Amendment rights of States. In the Arizona
	case, Judge Roll also ruled that the criminal penalties 
	provision of the Brady Law also violated the 5th Amendment.
	He went another step further, writing his decision so that the 
	injunctive relief applied nationwide.
	
	None of the judges has dealt with the issue of the waiting
	period itself, and higher court rulings are also unlikely
	to do so. However, by preventing the background check mandate,
	the courts are striking at the very rationale for the waiting
	period. If there can be no background check, the waiting
	period is pointless.

	Meanwhile, Sheriff Mack is conducting background checks because
	it cuts the wait down to one day in his county. Since his 
	department can conduct a check in hours and fax a response
	to the dealer, he is limiting the waiting period to one day.
	If he refused to conduct the checks and notify dealers, 
	the prospective buyers would have to waid the full five business
	days.