Mark posted four PDFs at http://creditcardshotgun.com yesterday.

Worth looking at.

As I'd expected, it gets a little (well, more than a little) complicated. The fine is over a violation of the zoning code -- sale of ammunition in a "C-1 zone"-- although neither the city's brief nor Mark's lawyer (David Feinwachs) spend much if any bytes on the issue of ammunition, or the sale of it that day.

If the administrative judge sees the issue as simply whether or not the city has proved that Mark sold ammunition to a specific person on that specific day, Mark will win. In fact, if the administrative judge did, he probably should have dismissed the case right then and there.

The city doesn't appear to be claiming, though, that on the given date Mark had actually sold ammunition (or firearms) to a given person at a given time (I think that's because they can't, because he didn't, and also because they don't think it's important), but that he was running a gunshop (presumably, which includes the sale of ammunition) on a given date, in violation of zoning ordinances. (And not, interestingly, in violation of a cease and desist order. Why? I dunno.)

Which is where it gets complicated. Mark's lawyer's position appears to be -- and I think the reality is -- that Koscielski's Guns and Ammo is, at the moment, not a "firearms dealer". It's something else, although his lawyer's brief doesn't quite say what it is, other than a "lack of business."

Now, the name of something isn't proof of what it is, either way. An "army surplus store" mainly doesn't sell stuff that some army has gotten rid of as surplus; Hooters doesn't sell owls.

But it's often a hint.

The city's position is that KGS is a firearms dealer. To oversimplify, maybe, they're taking the position that to claim that "Koscielski's Guns and Ammo" isn't a guns and ammo dealer fails the laugh test.

Mark's lawyer says that it's registered as a political fund. Are they claiming that it's a political fund storefront? Not a business anymore? A business that doesn't sell guns and ammo but carry permit training and other stuff, but is named "Guns and Ammo"?

Again: I dunno. Not being a lawyer, I'm not sure that my opinion matters, but I think they maybe ought to be claiming that "Koscielski's Guns and Ammo" is really "Koscielski's Carry Permit Training and Supplies," but that they can call themselves whatever they want. Far as I know, there isn't zoning for carry permit training, or things like the sale of holsters, knives, pepper spray, targets, etc.

(In fact, I've long argued that the area could use a good "carry shop", with good stocking on various models of holsters, carry clothing, books, etc. and the ability to get stuff in quickly. I've not argued that there'd necessarily be enough folks to support such a shop; with only 35,000 permit holder across the state, such a shop would have to get a preposterous percentage of the business to survive from the bricks-and-mortar part of the business, although mailorder/internet sales might help.)

(But I digress.)

The issue of gun cases, display cases, boxes, etc. isn't about whether or not such things are legal in that zone, but whether or not they are, in the context of the history of the business, the name of the business and other evidence, etc. a relevant part of the evidence that Mark's operating a firearms dealership at the location that he's been forbidden to.

Mark's lawyer dismisses that. Boxes and display cases, he argues, are ubiquitous. Mark's lawyer takes the position that being a firearms dealer is an "activity, not a status offense." Mark can, he implicitly argues, only be committing a violation at the moment when he is selling firearms and ammo.

Which means that he's arguing about what the meaning of "is" is. Among other things.

It could go either way, but . . .

Let's forget about Mark and the gunshop for a moment, and think about something else. Let's assume that bulldog fighting is legal in this state (it isn't), but that it's been subject to zoning, and that Minneapolis has zoned a small part of North Minneapolis for it.

Hypothetically: Bob's Bulldog Battlefield sits right next to Mark's on Chicago. It's got kennels for dogs -- and while there's no dogs in there, there's a certain air of them having been around recently. It's also got a dog-fighting cage, which shows signs of use -- but not necessarily recent use.

In addition, the walls of Bob's Bulldog Battlefield are filled with shelves, and the shelves are filled with, well, dog stuff: training videos, collars, leashes, medikits, whatever.

Bob, the owner of Bob's Bulldog Battlefield, says that while he used to have dogfights there, he no longer does since the city told him to stop. Occasionally, sure, people bring their dogs in, and maybe some training on dogfighting happens, from time to time, but there's no dogfights there. None.

The only way, Bob says, that you can ticket him for running a dogfighting business is if you get somebody to swear that, on a given day at a given time, they saw a dogfight -- an organized dogfight, not just a couple of guys who had dogs with them, and one of them took a nip out of the other.

Think that would fly?

My guess -- and it's just a guess -- is that it wouldn't.

My own take, as I've said, is that the wrong that's been done Mark -- and the community -- was the clever way that the city has actually zoned gunshops out of existence while not officially having done so.

That sucks.

This is still America isn't it? I thought you had to be proven guilty? Why do the cops do all these stings then. We've got hookers and drug dealers standing around obviously hooking and selling drugs, why do the cops have to set up buys to get evidance? Why don't they just arrest them for what they may appear to be doing?

I think it's a load of crap. Mr. Koscielski can call his shop any damn name he wants and engage in any legal activity in it. Those assholes have to prove (yes, at a given time and place) that he is doing otherwise.

And yes, it sucks.

Well, this is certainly an illustration of how law, language and logic intersect.

If Mark called the place Mark's Tofu Hut and Self-Defence Center, would he be OK?

I'll agree that it sucks, and yes, they do have to prove that a given forbidden activity is going on at a given time and place, but the question that the administrative judge is going to be deciding is, apparently, about the activity of "violating MCO [whatever]".

I hope he wins, but I wouldn't want to bet on it. The deck isn't exactly stacked in his favor.

As to your analogy, I'm not sure it works. If we had legal hooker zones, my guess is that hookers standing around arguably soliciting business elsewhere could be ticketed.

I'm personally in favor of zoning in general -- I'd very much rather not have a machine shop, say, opened next to my house -- but what's happened to Mark shows how it can be abused, and gotten away with.

I think it would be much harder to argue that he was running a firearms/ammo dealership if it wasn't named something like "Guns and Ammo."

"Koscielski's Conceal and Carry Training," or "KGS Concealed Carry Training and Supplies" for example. Fill the cases with holsters, 511 gear, belts, dummy rounds, etc., and invite the inspector in to see it, and it gets hard for the city to argue that it's a gunshop.

Keep a few guns -- just for training purposes, of course -- in the gun safe (nothing wrong with locking them up when you're not doing training); ammo only for personal defense, examples.

I hope he doesn't lose the present round, but if he does, going that route might be useful. Or not. I dunno.

Please correct me if my thinking here is faulty.

He was forbidden from selling guns and ammunition because it is forbidden in a C-1 Zone. To the city's knowledge, he has not sold either guns or ammunition since he was enjoined from doing so.

However, the city maintains because his shop still says "Guns and Ammo", he is violating the order forbidding him to sell guns and ammo--even if he isn't selling guns and ammo.

God, and it's over three hours before I can go out and have a drink.

It is, as I've been saying, more complicated. I understand why folks -- including me -- would like it more simple (see all the discussion above about how the city's saying that he can't have display cases and boxes, and what's the world coming to).

But that doesn't mean that it is, or that the administrative judge will see it that way.

In fact, if you look at both briefs -- Mark's lawyers and the city's -- the issue that they both ignore is whether and if Mark sold ammunition on a given day.

Or am I missing it? Is there somewhere in either brief where either side addresses that issue?

If either side believed that that was the central issue in the case, wouldn't they have discussed it? If they didn't, maybe it's not unreasonable to conclude that both lawyers think that the issues are the ones that they do discuss in their briefs?

I read the paper brief last week. My guess is that these were after the fact ways to get in a final word. They had a court hearing, so the main points of both sides were given on record.

Mark had invited me over to read them, and when I did, I had the same confused feeling of WTF? It's not really a brief.

Seriously, if the city wins this one, then the mediator/judge is really in the city's pocket.

Sure. Maybe the question of proving the specific ammunition sale on that day, at a given time and place, was argued over at the hearing. I know from Mark's report that the issue of cases in which to show guns came up, and it seems like another issue is where guns can and can't be shown in the context of running a business in a given kind of zone.

My guess, though, is that it wasn't the central issue there, either -- pretty easy for Mark's lawyer to get the cop to say that he didn't observe a transaction, since none apparently happened in his presence. And Feinwachs is a smart guy -- if he thought that the central issue was a given sale on a given day at a given time and given place, he'd be sure to point out in his brief that there's no testimony that a given sale took place at a given place, etc.

It'll be interesting to see the ruling, which is due just about any day. My guess -- and it's just a guess -- is that the issue that the administrative judge will decide is whether or not KGS is a gun shop; if he decides that it is, he'll rule that the fine applies; if he decides that it isn't, he'll rule that it doesn't.

I must be too simple to understand this complicated issue

How can he be fined for NOT doing an illegal activity?

What if Bob converted his battlefield into a dog boarding kennel? Could they fine him just for what they think he still might be doing on the sly? I hope not.

Ironically, there is a sex toy shop up here that the city has been trying to get rid of for years. However, they don't sell sex toys. They sell "personal lubricants" and "neck massagers".

If it's really just all about the name, I suggest that Mr. Koscielski changes it to "Koscielski's" and does whatever the hell legal activity he wants to do there.

But I suppose it's a matter of principle.

The whole thing seems damned unamerican to me.

I hope mark wins this one, but I have difficulty believing the Judge isn't in the city's pocket or at a minimum is just plain anti-gun and if the Judge can find a way to stick it to mark that passes the smell test (while the smeller is wearing a gas mask) the judge will do it.

Were I arguing against the city, I'd ask for sanctions under Rule 11 (or the state equivalent). The city's case is extremely bogus.

Both sides agree on the definition of a firearms dealer (which they have to, it's in state law). The city claims that Mark is a firearms dealer because it classified him as one, and the city goes on to point out that he didn't claim otherwise. The city doesn't bother mentioning that all this happened back when Mark was a firearms dealer, but no longer is.

The city states that Mark's claim that he is not a firearms dealer "because he did not sell a gun in the police offer's presence on April 11, 2006" is more bogosity. He is not a firearms dealer because he has not sold a gun in some months.

In fact, since the city claims he's a firearms dealer, and state law defines a firearms dealer as someone engaged in the sale of firearms, and Mark does not have a federal license, it seem to me that the city is accusing him of federal felonies. That might be actionable libel.

Since when does Mark not have a federal firearms dealer license? I used him as my FFL earlier this year, and we did the actual transaction at the big gun show at the state fairgrounds. He told me he could not do it in his shop, and he was very careful to make sure we followed the rules.

TK

Mark still has his FFL.

The city defines a gun shop as someone who sells (transfers) guns and/or ammo. Since Mark is not in a C4 zoned area, he cannot do those things. Since he has not, he cannot be fined for it. He cannot be fined for selling, if his sign mearly says guns and ammo.

I thought Mark had turned in his license, but I guess I misremembered.

In any event, the city's case is still based on a strawman argument, that Mark claims he isn't a dealer because he didn't sell on one specific date; and also because Mark isn't engaged in a different business that would require a license or zoning change that he doesn't have.