PDA

View Full Version : Peņa v. Cid re-stayed


hoffmang
08-09-2010, 1:56 PM
In a ruling (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.28.0.pdf) this morning Judge Damrell re-stayed Peņa v. Cid for the decision in Nordyke. Nordyke is on a fast track so far so hopefully this will only add about 4 months to the calendar.

Docket from RECAP here (http://archive.recapthelaw.org/caed/191444/). Background (http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid) on the case.

-Gene

Untamed1972
08-09-2010, 2:00 PM
If Pena was on hold for en banc on Nordyke over incorporation, but Nordyke was on hold for MacDonald over the incorporation question......since McDonald gave us incorporation, what else would be coming from Nordyke that Pena needs to wait on?

the_donald_
08-09-2010, 2:10 PM
If Pena was on hold for en banc on Nordyke over incorporation, but Nordyke was on hold for MacDonald over the incorporation question......since McDonald gave us incorporation, what else would be coming from Nordyke that Pena needs to wait on?

+1 I'm curious on this one too.

thedrickel
08-09-2010, 2:10 PM
It seems like a game of federal court chicken . . . who is going to give in first, the judges from Palmer, Pena, or Nordyke?

steadyrock
08-09-2010, 2:11 PM
It seems like a game of federal court chicken . . . who is going to give in first, the judges from Palmer, Pena, or Nordyke?

Agreed. Looks like reindeer games to me.

Colt-45
08-09-2010, 2:13 PM
Omfg.......:mad: I wonder what the judges excuse is going to be 4 months from now.......

what else would be coming from Nordyke that Pena needs to wait on?

+1

RP1911
08-09-2010, 2:16 PM
prolly avoiding an appeal of his pending decision.

yellowfin
08-09-2010, 2:24 PM
Interesting how I or anyone else with a responsible job would find paychecks hard to come by if we put off work for 4 months after everyone's been waiting on it for a year.

yellowfin
08-09-2010, 2:30 PM
It seems like a game of federal court chicken . . . who is going to give in first, the judges from Palmer, Pena, or Nordyke?Kachalsky and Woollard could also be delayed because of this. :mad: So get moving already! :26:

kf6tac
08-09-2010, 2:31 PM
If Pena was on hold for en banc on Nordyke over incorporation, but Nordyke was on hold for MacDonald over the incorporation question......since McDonald gave us incorporation, what else would be coming from Nordyke that Pena needs to wait on?

The Nordyke panel specifically ordered the parties to submit briefing on "(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and (2) any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question."

If I were a district judge, I'd be sitting on my hands until the 9th Circuit finished off Nordyke just to see what level of scrutiny they choose.

yellowfin
08-09-2010, 2:38 PM
If I were a district judge, I'd be sitting on my hands until the 9th Circuit finished off Nordyke just to see what level of scrutiny they choose.Or because you had to paint your house. Or because the month had an R in it. Or because the magic 8 ball was stuck. Or because your hair wasn't right that morning. Or because the cucumber in your salad had an odd number of bumps on it rather than an even number.

Untamed1972
08-09-2010, 3:03 PM
The Nordyke panel specifically ordered the parties to submit briefing on "(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and (2) any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question."

If I were a district judge, I'd be sitting on my hands until the 9th Circuit finished off Nordyke just to see what level of scrutiny they choose.


Yes....but the only thing tying Pena to Nordyke was the incorporation issue of the 2A was it not? Yes....McDonald may have other effects on Nordyke that need to be addressed but which have no bearing on Pena. Pena was simply held up over whether 2A was incorporated correct?

But as you stated I could see if from the perspective of wanting some guidance on level of scrutiny I suppose.

jb7706
08-09-2010, 3:03 PM
Anything to delay the inevitable. Reminds me of my 5 year old asking for water, then stuffed animals, then whatever else he can come up with so he won't have to go to sleep.

Colt-45
08-09-2010, 3:06 PM
Or because you had to paint your house. Or because the month had an R in it. Or because the magic 8 ball was stuck. Or because your hair wasn't right that morning. Or because the cucumber in your salad had an odd number of bumps on it rather than an even number.
+1 or maybe because he woke up at 3:33 a.m. that morning?

:rofl: :rofl2:

Yea, that's the type of judgement they seem to use when it comes to 2A cases. Anything to put them off for a few months.

OleCuss
08-09-2010, 3:16 PM
The Nordyke panel specifically ordered the parties to submit briefing on "(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and (2) any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question."

If I were a district judge, I'd be sitting on my hands until the 9th Circuit finished off Nordyke just to see what level of scrutiny they choose.

I think this is the key. As a non-lawyer, I think the judge may have made the right move. It'd seem kinda dumb to me to reach a verdict applying one level of scrutiny only to be immediately reversed because I'd applied a different level of scrutiny than had the 9th Circuit.

In fact, once Nordyke has been decided I'd probably be asking for further arguments regarding the application of the level of scrutiny decided by the 9th Circuit. But again, IANAL, so I could easily be wrong. . .

N6ATF
08-09-2010, 7:59 PM
Justice delayed, justice denied. How many more people need to be killed, raped, and maimed because they were infringed out of buying a gun?

Purple K
08-09-2010, 8:01 PM
Maybe they're stalling in hopes of getting the Gorski case first.....

dantodd
08-09-2010, 8:01 PM
Breaking News. Nordyke panel stays decision until resolution of Peņa. Film at 11:00.

hoffmang
08-09-2010, 8:14 PM
We argued that the issues in Nordyke don't bear on Peņa here (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.27.0.pdf). The Judge referred to the logic of his old stay order here (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.24.0.pdf). I certainly don't agree with his decision in this situation but I am cautiously optimistic about the outcome of Nordyke so this is likely only to cost time - not outcomes.

An amusing excerpt to from our opposition motion:
No reason exists to delay the resolution of this case any further, as the issues remaining for decision in Nordyke are entirely irrelevant to the determination of this case. Moreover, notwithstanding counsel’s diligent efforts, Nordyke appears interminable. The case was filed in 1999. It has been heard by the Ninth Circuit three times, including en banc after a sua sponte call for a vote, and had even passed through the California Supreme Court on a certified question. Following the panel’s next decision, it could well return before the en banc court, and perhaps reach the Supreme Court. Awaiting a resolution of Nordyke would amount to an indefinite stay.
-Gene

Hopi
08-09-2010, 8:18 PM
Thanks for the update Gene.

dantodd
08-09-2010, 8:24 PM
Realistically it sounds like the judge just wants to wait for guidance on level of scrutiny. I think it sounds a bit more like intellectual laziness than judicial economy. While "access" to firearms is part of Nordyke it is primarily (as outlined by the panel last time) largely a "sensitive places" issue. While Peņa is pretty much completely about access. It is not difficult to see where Nordyke might be kept at intermediate scrutiny because of the "sensitive places" exemption specifically carved out in Heller such cannot be argued for Peņa, which is specifically about access to handguns for self-defense, which is the core right defined in Heller.

Which all essentially boils down to the judge cannot logically accept whatever test Nordyke creates and apply it to Peņa because Peņa is about a "more fundamental" expression of RKBA.

BigDogatPlay
08-09-2010, 8:25 PM
Awaiting a resolution of Nordyke would amount to an indefinite stay.

Theory in a brief becomes reality.... does counsel have this week's lottery numbers? I ask only because that was a very prescient thought in the brief. :D

While I too am in the camp of optimists that guidance from the circuit regarding scrutiny might be a good thing, I am fearful that the continued insistence of the court to wait for the final final of Nordyke is an exercise in stall, and little more.

Crom
08-09-2010, 8:41 PM
We argued that the issues in Nordyke don't bear on Peņa here (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.27.0.pdf). The Judge referred to the logic of his old stay order here (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.24.0.pdf). I certainly don't agree with his decision in this situation but I am cautiously optimistic about the outcome of Nordyke so this is likely only to cost time - not outcomes.

An amusing excerpt to from our opposition motion:

-Gene

Thanks for the update. I enjoyed that quote from the argument. Amusing indeed.

Nordyke appears interminable. :D

Quiet
08-09-2010, 10:54 PM
booo! on the stay. :mad:

truthseeker
08-09-2010, 11:00 PM
SUCKS!

I have some things I want to purchase and this case is wrecking my plans!

halifax
08-10-2010, 2:01 AM
As Chief Justice Burger has noted: "A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law - in the larger sense - cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets." Burger, What's Wrong With the Courts: The Chief Justice Speaks Out, U.S. News & World Report (vol. 69, No. 8, Aug. 24, 1970) 68, 71 (address to ABA meeting, Aug. 10, 1970).

http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied

OleCuss
08-10-2010, 4:12 AM
Thank you for the additional explanations. Special thanks to Gene and Dan.

gtturborex
08-10-2010, 6:00 AM
Thanks for all the updates and all your hard work!!!

hill billy
08-10-2010, 8:17 AM
Thanks for your efforts. Waiting stinks. :(

M1A Rifleman
08-10-2010, 8:19 AM
Agreed. Looks like reindeer games to me.

Get used to it boys as I figure this is how things will play out in this state for awhile - back and forth to see who runs out of money and gives in first.

Wherryj
08-10-2010, 8:56 AM
It seems like a game of federal court chicken . . . who is going to give in first, the judges from Palmer, Pena, or Nordyke?

Unfortunately this might be the case. I was involved in a case against an obviously illegal medical foundation. The law required 40 physicians in ten specialties all of whom are independant physicians (among other things).

The foundation in question had 20 doctors and a CEO that was an executive officer of a local hospital. Obvious?

The credentialling agency was contacted with the information and stated, "we're waiting to see what the judge says." The judge wasn't too keen on "depriving that many employees of a job" by declaring it illegal, so the case went on and on until the attornies involved were afraid of bankrupting their office.

Sometimes the obvious isn't addressed because no one in charge has the cajones to act. They are waiting for someone else to take responsibility.

Vox
08-10-2010, 9:48 AM
Damn I keep having to click the background on Gene's post because I keep forgetting which one is Pena... lol

Munk
08-10-2010, 3:51 PM
It's like waiting for dominoes to fall.... one by one, except that the domino labeled "nordyke" is a complete cube. It's going to take alot of people pushing on it before it finally rolls over and knocks Pena V. Cid on its ***. Allowing one gun, while denying an identical gun that is merely OD green instead of black, what a freaking crock.

Vox
08-10-2010, 4:05 PM
It's like waiting for dominoes to fall.... one by one, except that the domino labeled "nordyke" is a complete cube. It's going to take alot of people pushing on it before it finally rolls over and knocks Pena V. Cid on its ***. Allowing one gun, while denying an identical gun that is merely OD green instead of black, what a freaking crock.

I actually don't see how the ruling on Nordyke could affect the Pena case. While Nordyke and Pena are ostensibly both Equal protection incorporations cases they're entirely different in manifestation. Much like There not being a reason for Loving v Virginia to have waited for Brown v Board of Education of Topeka.