WASHINGTON – A gun show organizer has been shot down for the second time by a federal appeals court, which ruled he does not have the right to sue Montgomery County for its part in keeping the county fairgrounds from leasing him space.
A three-judge panel of the 4th U.S. Circuit Court of Appeals said Frank Krasner, owner of Silverado Productions, does not have standing to sue the county because his injuries were caused by an independent third party — the Montgomery County Agricultural Center of Gaithersburg.
“We disagree with the holding and would like the full court to reconsider,” said Krasner’s attorney, Jonathan P. Kagan. “There’s no question that the county law is a gun-sale regulation.”
But an attorney for the county welcomed the court’s decision, the latest in a four-year legal battle over county rules.
“The county law doesn’t regulate gun shows or third parties per se; if it regulates, it regulates the government’s own expenditures,” said Clifford L. Royalty, the attorney for Montgomery County.
Krasner had leased the agricultural center’s fairgrounds to stage gun shows twice a year for more than a decade before a 2001 county law prohibited county funding for organizations that allowed the display and sale of guns.
The Ag Center explicitly cited the county code when it denied Krasner’s request, stating it had no personal issues with the gun show itself. Although it is owned by a private, non-profit group, the center had received as much as $500,000 from the county, according to court documents. Center officials did not return calls Tuesday.
Krasner, backed by other gun groups, sued the county in 2001 claiming violations of his constitutional rights to free speech and equal protection, and arguing that the county law did not apply in Gaithersburg.
The U.S District Court of Maryland agreed that the county law was regulatory and not just a funding restriction against gun sales, and that the city of Gaithersburg had the option of ignoring the county regulation under the “Tillie Frank” law.
Montgomery County appealed to the 4th Circuit, which sent the case back to U.S. District Judge Marvin J. Garbis in 2003, with instructions to determine if the gun groups had standing to sue before striking down the county law.
On remand, Garbis ruled that Krasner did have standing. But the county appealed again, and the appellate court disagreed.
The appeals court panel ruled Friday in a published opinion that it was the Ag Center that ultimately chose to deny Krasner’s request, even though the county law “makes it more expensive — perhaps prohibitively so — for the Ag Center to lease space to Krasner.”
But Kagan argued Tuesday that “the Ag Center doesn’t sell guns — who can challenge this law if the gun-sale promoters can’t?”
Krasner, who said the county law was “concocted by gun bigots,” still believes that his constitutional rights have been violated, even though the courts have yet to address that claim.
He said that while his personal losses are negligible, “the potential for future losses for gun shows nationwide is enormous.”
Kagan said the panel’s ruling sets a worrisome precedent “beyond this case” if regulations cannot be challenged in court by the groups they affect. He said Krasner may petition the 4th Circuit for a hearing en banc, or by the full circuit court.
“After that we’d then consider a petition to the Supreme Court,” Kagan said.
But Royalty said this ruling is consistent with other 4th Circuit decisions.
“To me, this case is a garden-variety standing case and there’s no need for the 4th Circuit to hear it en banc and no need for the Supreme Court to take up the matter,” Royalty said. “I see nothing groundbreaking in this decision.”
Krasner had no doubt Tuesday about his next step.
“I’m ready to go,” he said.
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