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hoffmang
08-22-2009, 9:32 AM
On Friday, Sacramento moved (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.28.0.pdf) to delay the the MSJ (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/019-Sykes-v-McGinness-MSJ-P+A-2009-08-6.pdf) in Sykes. Here is their legal reasoning (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.28.1.pdf) such as it is.

Sacramento claims they need discovery to see if the plaintiffs have standing. We contend that standing is a matter of law and there are no disputed facts as we'll stipulate to any facts Sacramento needs to determine standing. Obviously we'll be opposing this and don't think it has much merit. This shouldn't impact the current hearing (9/24, 2PM) but there are no guarantees.

-Gene

Roadrunner
08-22-2009, 9:47 AM
On Friday, Sacramento moved (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.28.0.pdf) to delay the the MSJ (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/019-Sykes-v-McGinness-MSJ-P+A-2009-08-6.pdf) in Sykes. Here is their legal reasoning (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.28.1.pdf) such as it is.

Sacramento claims they need discovery to see if the plaintiffs have standing. We contend that standing is a matter of law and there are no disputed facts as we'll stipulate to any facts Sacramento needs to determine standing. Obviously we'll be opposing this and don't think it has much merit. This shouldn't impact the current hearing (9/24, 2PM) but there are no guarantees.

-Gene

Sounds like they're grasping at straws.

RP1911
08-22-2009, 10:31 AM
They need to do some spell checking and punctuation eidts.


ETA: Wouldn't the court deny a hearing if there was no standing?

artherd
08-22-2009, 10:49 AM
Sacramento: "We, um. haven't really read this yet... do they have standing or what? Hey is that a puppy?"

Gray Peterson
08-22-2009, 10:58 AM
Sacramento: "We, um. haven't really read this yet... do they have standing or what? Hey is that a puppy?"

Delaying tactic, through and through. All they are trying to basically say is that they have no standing because they didn't apply recently or did not at all. This was answered pretty successfully by Gura in his MSJ.

GuyW
08-22-2009, 3:54 PM
The "We need more time to find our @#$ with both hands" move....
.

Window_Seat
08-22-2009, 4:47 PM
Maybe the defendants initial thinking was that all they had to do was just "deny" the whole thing, and then go "Oh $#|+, we're screwed, let's ask for a delay, and that'll fix it all..."

Erik.

HowardW56
08-22-2009, 5:17 PM
On Friday, Sacramento moved (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.28.0.pdf) to delay the the MSJ (http://www.hoffmang.com/firearms/sykes/MSJ-2009-08-06/019-Sykes-v-McGinness-MSJ-P+A-2009-08-6.pdf) in Sykes. Here is their legal reasoning (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.28.1.pdf) such as it is.

Sacramento claims they need discovery to see if the plaintiffs have standing. We contend that standing is a matter of law and there are no disputed facts as we'll stipulate to any facts Sacramento needs to determine standing. Obviously we'll be opposing this and don't think it has much merit. This shouldn't impact the current hearing (9/24, 2PM) but there are no guarantees.

-Gene

I would expect the court to grant the delay... 30-60 days

Unless the FRCP or Local Rules dictate otherwise

command_liner
08-22-2009, 5:19 PM
So, Sacramento is making nugatory arguments? Can we ask for sanctions
for abuse of process?

HowardW56
08-22-2009, 5:20 PM
Gene

Have they filed opposition to the MSJ, or just the motion seeking additional time?

HondaMasterTech
08-22-2009, 5:36 PM
How will the Sac sheriffs retirement affect the suit? Could it screw up the works? Is the delay tactic an attempt to drag this out past his retirement?

truthseeker
08-22-2009, 6:21 PM
I am wondering for myself.

I understand how they can ask for an extension or continuance, but their argument (to me) doesn't "hold any water".

Haven't the "Plaintiffs" already supplied all the documentation necessary for the BOTH sides to submit or argue their side?

Haven't the "defendant's" already had ample time to perform discovery?

Sounds like a stalling tactic that I am sure LOTS of lawyers use to help their side of the argument.

RP1911
08-22-2009, 6:35 PM
How will the Sac sheriffs retirement affect the suit? Could it screw up the works? Is the delay tactic an attempt to drag this out past his retirement?

IIRC, he will serve out his term which ends in late 2010 or early 2011.

ETA: http://www.kcra.com/news/20282735/detail.html

hoffmang
08-22-2009, 7:16 PM
I would expect the court to grant the delay... 30-60 days

Unless the FRCP or Local Rules dictate otherwise
I think the odds are about 80% against. See below.

Have they filed opposition to the MSJ, or just the motion seeking additional time?
They filed a 56(f) motion claiming a need for discovery. The issue is that there aren't actually facts in dispute. The individual plaintiffs are not prohibited persons but do not have "good cause" as the Sheriff defines it. The organizational plaintiffs certainly have supporters/members who are residents of Sacto without "good cause" that want CCWs. Personally I can think of 4 CGF donors without trying...

As such, this motion is basically wrong on the law. Discovery is to get to disputed facts. There really aren't disputed facts. If they were opposing the motion they could oppose standing as a matter of law, but of course we believe we are correct that there is more than enough standing to get to the merits.

-Gene

Kid Stanislaus
08-22-2009, 7:20 PM
They need to do some spell checking and punctuation eidts.

RIGHT!!:rolleyes:

HondaMasterTech
08-22-2009, 7:23 PM
I understand. Thanks.

Southwest Chuck
08-22-2009, 7:33 PM
Sacramento: "We, um. haven't really read this yet... do they have standing or what? Hey is that a puppy?"

ROFLOL :rofl2:

HowardW56
08-22-2009, 7:40 PM
I think the odds are about 80% against. See below.

They filed a 56(f) motion claiming a need for discovery. The issue is that there aren't actually facts in dispute. The individual plaintiffs are not prohibited persons but do not have "good cause" as the Sheriff defines it. The organizational plaintiffs certainly have supporters/members who are residents of Sacto without "good cause" that want CCWs. Personally I can think of 4 CGF donors without trying...

As such, this motion is basically wrong on the law. Discovery is to get to disputed facts. There really aren't disputed facts. If they were opposing the motion they could oppose standing as a matter of law, but of course we believe we are correct that there is more than enough standing to get to the merits.

-Gene

I would still expect the court to grant the delay... If they have standing now, they will in 30 or 60 days, and it will eliminate a point on appeal...

BillCA
08-22-2009, 7:51 PM
I would still expect the court to grant the delay... If they have standing now, they will in 30 or 60 days, and it will eliminate a point on appeal...
There is no basis to appeal on that point. Defendants don't dispute any of the material facts in the case. They had their chance to raise this issue and didn't.

A challenge that plaintiffs have not "recently" applied for a permit are specious. The time required to find an attorney, research a case and get through the fact-finding and initial motions can take up to six months. Since the harm has already occurred, there is no reason to re-apply. Otherwise CLEOs could simply wait until a citizen has had to spend several thousand dollars to seriously threaten to sue, then demand they reapply, grant a very limited CCW and wipe their hands clean.

HowardW56
08-22-2009, 8:07 PM
There is no basis to appeal on that point. Defendants don't dispute any of the material facts in the case. They had their chance to raise this issue and didn't.

A challenge that plaintiffs have not "recently" applied for a permit are specious. The time required to find an attorney, research a case and get through the fact-finding and initial motions can take up to six months. Since the harm has already occurred, there is no reason to re-apply. Otherwise CLEOs could simply wait until a citizen has had to spend several thousand dollars to seriously threaten to sue, then demand they reapply, grant a very limited CCW and wipe their hands clean.

Attacking standing is all that they seem to have left...

postal
08-22-2009, 8:27 PM
My birthday is 9/26.....

Crossing my fingers for a nice BD gift!!!!

Opus109
08-23-2009, 9:09 AM
1. The county is not merely seeking to delay the argument on the MSJ, they are seeking to re-open a significant portion of the case, which would likely delay a hearing for several months and end up costing the parties thousands of dollars. I agree that the chance of the county's FRCP 56(f) motion doesn't have much of a chance.

2. Even if argument goes forward on the 24th, a ruling won't come out for weeks.

3. Hoffmang, what is the "dream ruling" that we're looking for? California becoming a "shall issue" state, like Virginia and other states?

Thanks.

Invisible_Dave
08-23-2009, 2:47 PM
1. The county is not merely seeking to delay the argument on the MSJ, they are seeking to re-open a significant portion of the case, which would likely delay a hearing for several months and end up costing the parties thousands of dollars. I agree that the chance of the county's FRCP 56(f) motion doesn't have much of a chance.

2. Even if argument goes forward on the 24th, a ruling won't come out for weeks.

3. Hoffmang, what is the "dream ruling" that we're looking for? California becoming a "shall issue" state, like Virginia and other states?

Thanks.

Dream ruling? All gun related laws declared unconstitutional and guns become cash and carry. All carry is allowed for everyone without permit requirement.

Opus109
08-23-2009, 5:12 PM
Dream ruling? All gun related laws declared unconstitutional and guns become cash and carry. All carry is allowed for everyone without permit requirement.

I posed the question in the context of the motion at issue; not a nation-wide sea change in federal law on this issue. :)

hoffmang
08-23-2009, 6:32 PM
3. Hoffmang, what is the "dream ruling" that we're looking for? California becoming a "shall issue" state, like Virginia and other states?


The ruling our MSJ seeks is that "good cause" = "self defense" or "because I want one." "Good moral character" = "not prohibited from possessing firearms." Basically a sheriff would only be able to deny a permit if he had a reason that would bar a person from owning firearms are a reason that would pass heightened judicial scrutiny.

-Gene

Opus109
08-23-2009, 7:37 PM
The ruling our MSJ seeks is that "good cause" = "self defense" or "because I want one." "Good moral character" = "not prohibited from possessing firearms." Basically a sheriff would only be able to deny a permit if he had a reason that would bar a person from owning firearms are a reason that would pass heightened judicial scrutiny.

-Gene

In other words: "shall issue". I lived 12 years in Virginia, and that's basically how it works there.

Problem is, the judiciary's job is to interpret the law, not to enforce it. Even if your judge agrees with our position, and that's a long shot, who is going to enforce the ruling? Certainly not the U.S. Attorney for the Eastern District of California?! :eek:

There is little to no chance that a favorable ruling will result in a radical departure from established protocol in Sacramento County. I do hope, however, that we can establish a federal precedent.

Maestro Pistolero
08-23-2009, 7:45 PM
Problem is, the judiciary's job is to interpret the law, not to enforce it. Even if your judge agrees with our position, and that's a long shot, who is going to enforce the ruling? Certainly not the U.S. Attorney for the Eastern District of California?!

I believe the court has ample tools at it's disposal to force compliance, if it wishes. Contempt of court is a serious matter. A recalcitrant LE officer bent on snubbing a court order can end up in his own jail without a key.

HowardW56
08-23-2009, 7:45 PM
In other words: "shall issue". I lived 12 years in Virginia, and that's basically how it works there.

Problem is, the judiciary's job is to interpret the law, not to enforce it. Even if your judge agrees with our position, and that's a long shot, who is going to enforce the ruling? Certainly not the U.S. Attorney for the Eastern District of California?! :eek:

There is little to no chance that a favorable ruling will result in a radical departure from established protocol in Sacramento County. I do hope, however, that we can establish a federal precedent.

The federal court retains jurisdiction to enforce it's rulings. No one, especially not a sheriff would want to be the subject of a motion for an Order to Show Cause RE: Contempt...

Maestro Pistolero
08-23-2009, 7:46 PM
The federal court retains jurisdiction to enforce it's rulings. No one, especially not a sheriff would want to be the subject of a motion for an Order to Show Cause RE: Contempt...

HA! Great minds. Look at the time stamp on the last two posts!

HowardW56
08-23-2009, 7:48 PM
HA! Great minds. Look at the time stamp on the last two posts!

:D..

Opus109
08-23-2009, 8:23 PM
The federal court retains jurisdiction to enforce it's rulings. No one, especially not a sheriff would want to be the subject of a motion for an Order to Show Cause RE: Contempt...

Point well taken. I can only imagine, however, that a "dream ruling" will result in retrenchment and "dirty tricks." California has an established anti-gun culture among the elected "elites," including many Sheriffs, city/county counsels, and the state legislature. A favorable ruling, followed by an appeal, possibly an en banc hearing, etc., will take perhaps years to make its way into local LE protocols.

We have a long road ahead of us, I'm afraid..., but hopefully we will prevail.

HondaMasterTech
08-23-2009, 8:25 PM
Point well taken. I can only imagine, however, that a "dream ruling" will result in retrenchment and "dirty tricks." California has an established anti-gun culture among the elected "elites," including many Sheriffs, city/county counsels, and the state legislature. A favorable ruling, followed by an appeal, possibly an en banc hearing, etc., will take perhaps years to make its way into local LE protocols.

We have a long road ahead of us, I'm afraid..., but hopefully we will prevail.

Hopefully, you're wrong.

HowardW56
08-23-2009, 8:27 PM
Point well taken. I can only imagine, however, that a "dream ruling" will result in retrenchment and "dirty tricks." California has an established anti-gun culture among the elected "elites," including many Sheriffs, city/county counsels, and the state legislature. A favorable ruling, followed by an appeal, possibly an en banc hearing, etc., will take perhaps years to make its way into local LE protocols.

We have a long road ahead of us, I'm afraid..., but hopefully we will prevail.

Whether we prevail or not, there is no doubt there will be appeals...

BillCA
08-24-2009, 3:31 AM
Point well taken. I can only imagine, however, that a "dream ruling" will result in retrenchment and "dirty tricks." California has an established anti-gun culture among the elected "elites," including many Sheriffs, city/county counsels, and the state legislature. A favorable ruling, followed by an appeal, possibly an en banc hearing, etc., will take perhaps years to make its way into local LE protocols.

We have a long road ahead of us, I'm afraid..., but hopefully we will prevail.
Don't forget that en banc hearings on cases is not a given. Given that over 85% of the States have some form of shall issue laws, California lies outside of the "mainstream". Assuming the 9th Circus en banc panel reverses the Nordyke incorporation, a second en banc reversal of a politically charged issue could raise the eyebrows of SCOTUS and result in some uncomfortable questions.

Does anyone know if the current CCW process was the result of the 1967 Mulford Act? All I've been able to find out is that Mulford prohibited carrying guns on the person or in vehicles, but I don't know that it established the "Good Cause" mandate.

Remember that this was barely 2 years after the Watts riots and the Black Panthers showed up on the Capitol steps with guns to protest the Mulford Act. With increasing unrest over Vietnam and suddenly an "Armed Negro Band" (according to Sacramento Bee's headline) making "radical" demands shows up helped pass the law. One can easily come to the conclusion that the "good cause" statement gave CLEOs a way to deny CCW permits to blacks.

fullrearview
08-24-2009, 8:49 AM
How will the Sac sheriffs retirement affect the suit? Could it screw up the works? Is the delay tactic an attempt to drag this out past his retirement?

Or is it a delay tactic to hand out all the CCW's that are about to be issued?

HondaMasterTech
08-24-2009, 9:35 AM
Or is it a delay tactic to hand out all the CCW's that are about to be issued?

Interesting point.

yellowfin
08-24-2009, 10:16 AM
Or is it a delay tactic to hand out all the CCW's that are about to be issued? If that's the case then they just get more and more applicants and if the counties are dumb enough to roadblock any of them then resume the suit as a 2nd and 14th issue again. See just how far they'll squeak the gate open: if they can live with 3 more CCW's, can they live with 300, 3000, or 10,0000? Whenever they say stop is where we say "Oh really? Why not this one if that one is just fine? Care to issue this one or do we sue you again?"

Any further games they play we just drag up the civil rights cases that struck the other Jim Crow laws.

hoffmang
08-24-2009, 11:44 AM
Does anyone know if the current CCW process was the result of the 1967 Mulford Act? All I've been able to find out is that Mulford prohibited carrying guns on the person or in vehicles, but I don't know that it established the "Good Cause" mandate.


California's CCW laws were passed in the mid 1920's as anti chinese and latino immigrant measures. The wiki is starting to have a good history: http://wiki.calgunsfoundation.org/index.php/Time_Line_of_California_Firearms_Laws

-Gene

HondaMasterTech
08-24-2009, 11:54 AM
Challenge "Good Cause" as racist...

Sobriquet
08-24-2009, 12:01 PM
Challenge "Good Cause" as racist...

You would need to show discriminatory impact as well as discriminatory intent. I haven't seen if such data exists.

The challenge made in Sykes seems more straight-forward and likely to succeed anyway.

artherd
08-24-2009, 12:13 PM
There is little to no chance that a favorable ruling will result in a radical departure from established protocol in Sacramento County.

Oh really? If a Sheriff sees fit to ignore a Court Order I will initiate the process to have him arrested by CHP and hauled before a (federal) Magistrate to explain himself.

7x57
08-24-2009, 12:20 PM
Oh really? If a Sheriff sees fit to ignore a Court Order I will initiate the process to have him arrested by CHP and hauled before a (federal) Magistrate to explain himself.

Integration is more or less unanswerable and sufficient proof that the federal courts can enforce their decisions, or to be pedantic that the federal executive branch has the power and the will to enforce the judicial branch's decisions.

Why are we even arguing about this? It requires more unreasoning paranoia than even I can manage about California to imagine that a county sheriff is too big to spank.

7x57

artherd
08-24-2009, 12:25 PM
Or is it a delay tactic to hand out all the CCW's that are about to be issued?

Satco could be under the mistaken impression that would work...

Defendants have standing because they are residents. Period.

They'd have standing to challenge this matter of law even if they had a ccw

The challenge is not "you denied me" it is "you have the POWER to deny me - and you shouldn't."

artherd
08-24-2009, 12:27 PM
It requires more unreasoning paranoia than even I can manage about California to imagine that a county sheriff is too big to spank.

+1. I'll happily put the cuffs on him myself. No Sheriff is above the law.

wildhawker
08-24-2009, 12:36 PM
Your car has all the lights needed to get him into custody but quick, although it's a nicer ride than he deserves.

7x57
08-24-2009, 12:41 PM
+1. I'll happily put the cuffs on him myself. No Sheriff is above the law.

Quibble: I am suspicious enough to suspect that certain California sheriffs are in practice above a fair amount of California law, in that the CA courts have demonstrated a lack of interest in endemic corruption.

But there seems to be plenty of evidence that they won't be above Federal law if the Federal courts get involved. One thing the paranoid (on this subject) forget is human nature. If a sheriff disregards the federal courts then federal law enforcement won't be concerned with the issue involved or whether they disagree. They'll be concerned with something far closer to their interests: that unanswered contempt for federal law diminishes federal authority, and they are the direct arm of federal authority.

What I'm trying to say is that even in the worst case, it doesn't require either goodwill toward us or even a great deal of integrity for the courts' orders to be obeyed. It only requires ordinary self-interest. We can count on self-interest.

7x57

bulgron
08-24-2009, 12:53 PM
I still have little hope that we will win the MSJ at any level in the Federal Courts. My guess is it will be denied and then we'll have to go on to take this to trial. But by then the incorporation issue should be settled, and we should prevail.

Just a layman's take on the situation.

What has me scratching my head and smiling a bit is watching this case, plus the drama that Billy Jack is promising around the Santa Clara County Sheriff's Department. I don't know how the timing will play out, but it seems to me that there's something of a collision in the works.

What this is, is potentially a huge train wreck for Santa Clara County.

From my point of view, it's the kind of a train wreck that you see in the movies while munching popcorn. You watch it wide-eyed, and then later talk about how cool it was.

From the point of view of command staff, this is (or should be, in a just world) a real train wreck; the kind that happens when you're on a commuter train that is traveling at speed just as that 8.5 earthquake hits. You don't want to be on that train when it wrecks. It's terrifying. And painful. And maybe not survivable.

I wonder if anyone in command staff is watching all this stuff coming their way, and thinking, "Gee, maybe I should get off this train before it's too late"?

I wonder if it's too late for them to get off the train.

hoffmang
08-24-2009, 1:02 PM
I still have little hope that we will win the MSJ at any level in the Federal Courts. My guess is it will be denied and then we'll have to go on to take this to trial. But by then the incorporation issue should be settled, and we should prevail.


A denial of the MSJ does not lead to a trial. It leads directly to an appeal. There will be no trial in Sykes.

-Gene

artherd
08-24-2009, 1:17 PM
From my point of view, it's the kind of a train wreck that you see in the movies while munching popcorn. You watch it wide-eyed, and then later talk about how cool it was.

Heheh, just make sure to buy your movie tickets by donating to The Calguns Foundation (http://www.calgunsfoundation.org/index.php/donate). With cases like Sykes (http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness) and Peņa (http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid) underway I can promise you many more summer, fall, winter and spring blockbusters!

wash
08-24-2009, 1:18 PM
So what is happening?

Was there a delay?

bulgron
08-24-2009, 1:23 PM
A denial of the MSJ does not lead to a trial. It leads directly to an appeal. There will be no trial in Sykes.

-Gene

I don't understand this. If we make a MSJ, and it gets denied, including on appeal, doesn't that just mean there is no summary judgement? At which point, the actual trial proceeds, right?

I always thought that when a motion for a summary judgment is denied, it just means that the judge thinks there's enough question in the case to have an actual trial, examine evidence, etc. & etc.

7x57
08-24-2009, 3:26 PM
A denial of the MSJ does not lead to a trial. It leads directly to an appeal. There will be no trial in Sykes.

-Gene

I don't understand this. If we make a MSJ, and it gets denied, including on appeal, doesn't that just mean there is no summary judgement? At which point, the actual trial proceeds, right?

I always thought that when a motion for a summary judgment is denied, it just means that the judge thinks there's enough question in the case to have an actual trial, examine evidence, etc. & etc.

I don't know if I understand it either, but I'm going to take a wild guess that Gene's point is this: the purpose of a trial is to determine disputed matters of fact. Judges are presumed to know the law, and the lawyers submit briefs on the law relevant to the case as well as stipulating facts the sides agree on. What then remains are the disputed facts on which the law must operate. The trial, then, determines those facts, and with them in hand, the judge applies the law (or at least we hope so, though I can't resist taking a cheap shot about all the times in the history of the 2A judges clearly refused to apply the law) and writes an opinion.

But there are no facts in dispute in Sykes--the case is purely about the law. Thus, there is nothing left to do--the judge simply needs to rule on what the law says. If that's right, it would make sense that denying the MSJ amounts to ruling against the plaintiffs (us), at which point we appeal.

That within a league or three of the truth, Gene? Lawyers? Semi-hemi-demi lawyers?

7x57

yellowfin
08-24-2009, 3:41 PM
Why are we even arguing about this? It requires more unreasoning paranoia than even I can manage about California to imagine that a county sheriff is too big to spank.

7x57To big? No. Too well protected? They sure have been for the last 4 decades, haven't they? I see too few heads on the ground, though perhaps now they sit more uncomfortably.

Hopi
08-24-2009, 3:43 PM
Oh really? If a Sheriff sees fit to ignore a Court Order I will initiate the process to have him arrested by CHP and hauled before a (federal) Magistrate to explain himself.

Damn you meddling kids and your dog too!


How does it go?.....the Sheriff better aks somebody!

Scarecrow Repair
08-24-2009, 4:00 PM
To big? No. Too well protected? They sure have been for the last 4 decades, haven't they? I see too few heads on the ground, though perhaps now they sit more uncomfortably.

If deep south governors were not immune to federal courts, what makes you think a mere sheriff is? Do you have any specific instances of county sheriffs thumbing their nose at federal court orders?

Shotgun Man
08-24-2009, 4:09 PM
Oh really? If a Sheriff sees fit to ignore a Court Order I will initiate the process to have him arrested by CHP and hauled before a (federal) Magistrate to explain himself.

Why CHP? They would seem like the least applicable agency.

Maybe Federal Marshalls.

GoodEyeSniper
08-24-2009, 4:19 PM
Why CHP? They would seem like the least applicable agency.

Maybe Federal Marshalls.

I would imagine the least applicable agency being the officers in that sheriff's department... :43:

bulgron
08-24-2009, 4:20 PM
But there are no facts in dispute in Sykes--the case is purely about the law.

The "facts in dispute" would seem to me to be whether the 2A is incorporated.

I see it going something like this:

District Judge: "2A is not incorporated. MSJ denied."
Our Side Appeals: "2A is incorporated, so the MSJ should be granted."
3 Panel 9th Circuit Court: "2A has just been incorporated. Remand to district court for further review."
District Judge (grudgingly): "2A incorporated. MSJ granted."
County Attorneys: "Whiiiiiine."
3 Panel 9th Circuit Court: "2A not strict scrutiny. Local governments can do whatever they want with permits."
En Banc Appeal: "We don't want to hear your steeenkin case. Denied En Banc review."
SCOTUS appeal: "An enumerated right that can be arbitrarily denied makes no sense. US Citizens have a right to bear arms in public. State of California has said that it wants its citizens bearing arms concealed, so it cannot arbitrarily deny this right via fuzzy criteria like Good Cause or Good Character. Point of law upheld. All Californians can now get CCW permits."

artherd
08-24-2009, 4:30 PM
Why CHP? They would seem like the least applicable agency.

Maybe Federal Marshalls.

CHP investigates corruption amongst state law enforcement agencies.

yellowfin
08-24-2009, 4:30 PM
^ Why should they remand the case rather than simply decide it, hand them their spanking then and save the ping pong?

yellowfin
08-24-2009, 4:32 PM
If deep south governors were not immune to federal courts, what makes you think a mere sheriff is? Do you have any specific instances of county sheriffs thumbing their nose at federal court orders?Direct orders, no. Two amendments to the US Constitution and a Supreme Court case, not to mention lots of other cases striking down of almost all other Jim Crow laws except this one. If it hadn't been for Miller this one would have gone down when all the others did too.

command_liner
08-24-2009, 4:33 PM
A few quick points.

Gene, thanks for the Wiki. You might add a section to the Wiki pointing out
how the Assembly very recently apologized for passing CPC12025. See my
recent thread on that point.

The racial discrimination thread has been around for a while. Consider the
Duke Power case (USSC 1971) and the tiptoe around that in the recent
Ricci case. Under Duke Power, any test that shows a racial bias in the
results is de facto and de jure illegal.

I have not see the racial data for CCWs, but my interaction with CCW holders
in the last 30 years leads me to think there is almost certainly a sharp
difference between the CCW racial distribution and the racial distribution
of each county. If this is the case, CCW license testing is illegally
discriminatory under Duke Power and must be discarded.

As past president of All Races United (238 Maine Street, Brunswick, Maine)
I feel comfortable saying Duke Power is complete nonsense and awful law.
It two children are the CRA (which begat the recent mortgage mess and
current economic mess) and very high college costs. But, if Duke Power
destroys the various gun license laws in California, New York, DC and MA,
all will be forgiven.

POLICESTATE
08-24-2009, 4:39 PM
County Attorneys: "Whiiiiiine." Best laugh I've had all day! :D


The "facts in dispute" would seem to me to be whether the 2A is incorporated.

I see it going something like this:

District Judge: "2A is not incorporated. MSJ denied."
Our Side Appeals: "2A is incorporated, so the MSJ should be granted."
3 Panel 9th Circuit Court: "2A has just been incorporated. Remand to district court for further review."
District Judge (grudgingly): "2A incorporated. MSJ granted."
County Attorneys: "Whiiiiiine."
3 Panel 9th Circuit Court: "2A not strict scrutiny. Local governments can do whatever they want with permits."
En Banc Appeal: "We don't want to hear your steeenkin case. Denied En Banc review."
SCOTUS appeal: "An enumerated right that can be arbitrarily denied makes no sense. US Citizens have a right to bear arms in public. State of California has said that it wants its citizens bearing arms concealed, so it cannot arbitrarily deny this right via fuzzy criteria like Good Cause or Good Character. Point of law upheld. All Californians can now get CCW permits."

7x57
08-24-2009, 5:39 PM
The "facts in dispute" would seem to me to be whether the 2A is incorporated.


Indeed, but that doesn't seem to be a "fact" as I hear lawyers using the term. I'm fairly alert to technical definitions, and I think there is one involved here. My impression is that "facts" are distinct from "the law." Whether the 2A is incorporated would be a matter of what the law is. A fact would be some external circumstance upon which the law, whatever it is found to be, would bear.

Sounds like sophistry, but that is my inference from listening to the legal eagles.

7x57

7x57
08-24-2009, 5:52 PM
CHP investigates corruption amongst state law enforcement agencies.

[cheap shot]

Hmm, because it fits their main expertise? If an official is found to be up to no good, they put flares out around the building perhaps? :D

[/cheap shot]

7x57

Shotgun Man
08-24-2009, 5:58 PM
CHP investigates corruption amongst state law enforcement agencies.

I checked out their website and organizational chart. I could not find the mission that you impute to them.

http://www.chp.ca.gov/depts_divs_offs/index.html

bulgron
08-24-2009, 6:03 PM
Indeed, but that doesn't seem to be a "fact" as I hear lawyers using the term. I'm fairly alert to technical definitions, and I think there is one involved here. My impression is that "facts" are distinct from "the law." Whether the 2A is incorporated would be a matter of what the law is. A fact would be some external circumstance upon which the law, whatever it is found to be, would bear.

Sounds like sophistry, but that is my inference from listening to the legal eagles.

7x57

Yes, point taken. I am not a lawyer (THANK THE BENEVOLENT GODS!!!), so I don't know how they talk about this stuff. But my central expectation remains. I expect the MSJ to fail, at least initially, due to 2A incorporation drama. And I also expect this case to churn through the courts while everyone involved (except CalGuns/SAF lawyers) drag their feet as long as possible before admitting that we're right and the state has been wrong since 1924 or 1967, depending on how you argue it.

yellowfin
08-24-2009, 6:15 PM
Yes, point taken. I am not a lawyer (THANK THE BENEVOLENT GODS!!!), so I don't know how they talk about this stuff. But my central expectation remains. I expect the MSJ to fail, at least initially, due to 2A incorporation drama. And I also expect this case to churn through the courts while everyone involved (except CalGuns/SAF lawyers) drag their feet as long as possible before admitting that we're right and the state has been wrong since 1924 or 1967, depending on how you argue it.When you look at it, the beauty of that is that the more they say in arguing it that gets refuted by the big win at the end, the more of their arguements are shot down in precedent which allows for further unraveling of laws. If you make an argument in a legal case and lose then that argument has been permanently defeated--the more they have that's defeated the less they have left next time; they can keep doubling down on a losing hand and lose it all in one shot...which I hope they're stupid enough to do. If they play every single card in the anti gunners' deck and then lose at SCOTUS, then we can take every single time they've used each card in all the states that have unconstitutional laws and strike all their rulings which uphold such laws.

If the anti gun complex in CA wants to take this to SCOTUS on a losing case for them, I'll buy them their plane ticket to DC and their hotel room. We've got a whole state of NY over here that wants an AWB ban and the nation's worst pistol law flushed down the crapper and we're more than glad to let the folks in Sacramento and San Francisco do the dirty work for us.

jasilva
08-24-2009, 6:48 PM
I checked out their website and organizational chart. I could not find the mission that you impute to them.

http://www.chp.ca.gov/depts_divs_offs/index.html

State police have been incorporated into the CHP. So if you look at the State Police organizational chart the mission would be found there. CHP can and does handle any investigation that is under the jurisdiction of the SP.

Shotgun Man
08-24-2009, 6:54 PM
State police have been incorporated into the CHP. So if you look at the State Police organizational chart the mission would be found there. CHP can and does handle any investigation that is under the jurisdiction of the SP.

That would be helpful information, except I don't know of any state police-- they have been incorporated into the CHP.

7x57
08-24-2009, 7:29 PM
We've got a whole state of NY over here that wants an AWB ban and the nation's worst pistol law flushed down the crapper and we're more than glad to let the folks in Sacramento and San Francisco do the dirty work for us.

Hang in there, buddy, we're coming to relieve Tobruk!

7x57

hoffmang
08-24-2009, 10:13 PM
Whether the 2A is incorporated is "law." Whether Ms. Sykes is elligible to possess firearms is a "fact."

Once in a rare while you have issues that are mixed issues of law and fact. Those would be things like whether an issuance policy is discriminatory - think a Team Billy Jack case. However here, the facts are simple. All three plaintiffs are law abiding gun owners eligible to possess firearms (fact) that would like to carry firearms for self defense (fact). They are residents of either Sac or Yolo County (fact). Both sheriffs publish their carry permit issuance policies (fact) on their websites. The "facts" are that those policies say what they say and we'll assume they follow them. All that remains is the law.

It is a legal question of whether a policy of requiring more than self defense for a carry permit when one can not open carry loaded is constitutional under the 2A as incorporated. That's it. That's the case. This case is not very fact intensive whatsoever.

So if we lose the MSJ, we appeal because that motion is dispositive. Heller (as Parker) lost the MSJ in district court, then won the MSJ in the DC Court of Appeals 2-1. Heller went in front of SCOTUS on an appeal by DC to the loss of the MSJ in Parker.

-Gene

artherd
08-24-2009, 11:55 PM
[cheap shot]

Hmm, because it fits their main expertise? If an official is found to be up to no good, they put flares out around the building perhaps? :D

[/cheap shot]

7x57

LOL! CHP did absorb the California State Police a few years back... still, funny :D

fullrearview
08-25-2009, 8:30 AM
If that's the case then they just get more and more applicants and if the counties are dumb enough to roadblock any of them then resume the suit as a 2nd and 14th issue again. See just how far they'll squeak the gate open: if they can live with 3 more CCW's, can they live with 300, 3000, or 10,0000? Whenever they say stop is where we say "Oh really? Why not this one if that one is just fine? Care to issue this one or do we sue you again?"

Any further games they play we just drag up the civil rights cases that struck the other Jim Crow laws.

Well good. When I get mine (should be soon) then maybe it can be used as more justification.

7x57
08-25-2009, 9:23 AM
LOL! CHP did absorb the California State Police a few years back... still, funny :D

I stole it from someone who was commenting on the fact that if you call 911 from a cell phone you get the CHP, not your local responding agency. His comment was that you should find your local responding agency's direct line and put it on speed-dial, because calling CHP isn't that useful. "What are they going to do--come over and put flares out around your house?"

Not fair to CHP, I'm sure, but the mental picture is well worth it. :D

7x57

Scarecrow Repair
08-25-2009, 9:27 AM
So if we lose the MSJ, we appeal because that motion is dispositive. Heller (as Parker) lost the MSJ in district court, then won the MSJ in the DC Court of Appeals 2-1. Heller went in front of SCOTUS on an appeal by DC to the loss of the MSJ in Parker.

Is it possible that appeals go all the way to the Supreme Court and the end result is a trial to let a jury decide those few facts?

bulgron
08-25-2009, 9:28 AM
Is it possible that appeals go all the way to the Supreme Court and the end result is a trial to let a jury decide those few facts?

From everything Gene has said in this thread, no. There won't be an actual trial, ever.