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View Full Version : Nordyke III Audio is released:


Window_Seat
10-19-2010, 5:41 PM
http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000006368

Erik.

Havoc70
10-19-2010, 5:51 PM
Sweet! Listening.

Window_Seat
10-19-2010, 6:16 PM
One of the Judges asks the County's Counsel:

"McDonald tells us not only is the Heller right preserved, it applies to the states, but it really emphasized the fact that the 2nd Amendment is a substantial fundamental right suggesting as we've seen in some of these other post McDonald cases, strict scrutiny perhaps ought to be applied, why shouldn't we apply strict scrutiny to this ordinance?"
:D:D

Erik.

Havoc70
10-19-2010, 6:26 PM
And there wasn't a good answer from the County on that, love it! :)

Peter.Steele
10-19-2010, 6:43 PM
Any transcripts? I don't have time to actually listen to it ...

AIMSMALL
10-19-2010, 6:51 PM
The audio is worth the time spent listening I think you get a "feel" for how the judges stand and you can tell the county speaker is feeling the pressure too.


My question is when do we get the decision?

AndrewMendez
10-19-2010, 6:55 PM
Great work Erik!! I will add it to the CGN Facebook Page!!

moleculo
10-19-2010, 6:56 PM
It's worth the listen. The comparisons made between the 1st and 2nd amendments were very compelling, and I hope the judges see it the same way. Honestly, who knows how this thing will play out...but the Alameda attorney sure sounds like she's making it up as she goes along.

ptoguy2002
10-19-2010, 7:08 PM
Limited to an Iphone
currently for anything with audio.
Link is to a wma file.
Any links to something iPhone compatible?

choprzrul
10-19-2010, 7:26 PM
Limited to an Iphone
currently for anything with audio.
Link is to a wma file.
Any links to something iPhone compatible?

there isn't an app for wma?

.

choprzrul
10-19-2010, 7:27 PM
posted this a bit ago in the Nordyke Orals III thread, but applies here also:

Just got done listening to the audio. Sounded like the county is running an uphill race. They really had to drag it out of her that CCW was specifically allowed on the fairgrounds; and I think that is where the county is going to lose. I also am leaning towards thinking that the court will apply strict scrutiny in this case also. Just my $.02 from listening to the audio. Now, if we can tear Gene away from the previously scheduled libations and culinary delights, maybe we can get a professional's opinion.

OleCuss
10-19-2010, 7:36 PM
I thought it was an interesting listen but I also know that I'm not good enough at law and legal procedure to have a good idea whether it bodes ill or if it bodes well.

To me, however, Kilmer seemed to be following a pretty logical and straightforward path and it didn't seem that he caught too much grief from the judges.

I had trouble following what the county lawyer was trying to do. It also seemed to me that she was at times non-responsive (but again, I may have been completely misunderstanding). It also seemed rather interesting that a judge wanted to question her past her allotted time - I'm not at all sure that this meant good things for her case.

I'm looking forward to an expert analysis.

choprzrul
10-19-2010, 8:05 PM
I thought it was an interesting listen but I also know that I'm not good enough at law and legal procedure to have a good idea whether it bodes ill or if it bodes well.

To me, however, Kilmer seemed to be following a pretty logical and straightforward path and it didn't seem that he caught too much grief from the judges.

I had trouble following what the county lawyer was trying to do. It also seemed to me that she was at times non-responsive (but again, I may have been completely misunderstanding). It also seemed rather interesting that a judge wanted to question her past her allotted time - I'm not at all sure that this meant good things for her case.

I'm looking forward to an expert analysis.


^^ ++1 ^^

I am thinking that they are all out dining & drinking. Well deserved I must say. Kinda thinking the expert analysis would be better put off until morning. Although, commentary tonight might be interesting & entertaining. We must be like a bunch of kids @ Christmas to them. They know we are all sitting here all figitdy in our chairs awaiting any clues.

.

HowardW56
10-19-2010, 8:06 PM
I think Don Kilmer did very well, and the countty's attorney seemed to fumble, but I got the impression that they may send it back to the trial court with some instruction as to standard of review...

choprzrul
10-19-2010, 8:16 PM
I think Don Kilmer did very well, and the countty's attorney seemed to fumble, but I got the impression that they may send it back to the trial court with some instruction as to standard of review...

...hmmm...I kinda was thinking that they sounded hesitant to send it back to the trial court...

...but then, IANAL

.

OleCuss
10-19-2010, 8:17 PM
^^ ++1 ^^

I am thinking that they are all out dining & drinking. Well deserved I must say. Kinda thinking the expert analysis would be better put off until morning. Although, commentary tonight might be interesting & entertaining. We must be like a bunch of kids @ Christmas to them. They know we are all sitting here all figitdy in our chairs awaiting any clues.

.

I've no problem with their being out celebrating. While I'm interested in their analysis, I'm not overcome with eagerness. It's when the final ruling is handed down that we'll know the outcome. It wouldn't even surprise me if it was changed to en banc again before the ruling.

And when the ruling is issued there will still be a pretty good chance of an appeal no matter what direction the ruling goes.

So I hope Kilmer and the rest just have a great evening without giving us a thought.

HowardW56
10-19-2010, 8:22 PM
...hmmm...I kinda was thinking that they sounded hesitant to send it back to the trial court...

...but then, IANAL

.

The questions from the judges on the adequaqcy of the record regarging the 2nd Amendment, and sensitive places is what makes me think they may send it back to the trial court.

The way I understand it:

The appealate courts deal with questions of law, not fact.

If there are facts to be determined that is for the trial courts...

safewaysecurity
10-19-2010, 8:30 PM
Just finished the Audio. The county attorney stuttered alot and seemed like a child lost in a crowd or something. I like how judges kept the pressure on. It looks good for us but I don't think they are going to send it back trial court for the finding. When can we reasonably expect decision from this court?

anthonyca
10-19-2010, 8:41 PM
This may not an accurate quote but one of the judges asked " was there finding where a gun show caused one of the shootings" county's lawyer................ um a umm aaaaa no.

bulgron
10-19-2010, 9:12 PM
The way the judges will rule on this case is based more on the briefs than anything else. The oral arguments are almost a side-show in comparison. That said, I think Kilmer came across better (the Alameda lawyer stuttered too much), but I did think the Alameda lawyer made a bunch of good arguments, especially when she pointed out how the gun show is situated differently than the Scottish Games.

Right at the end there, it almost sound as if she was saying that the vendors could sell guns at a gun show on the fair grounds so long as they're armed. I guess the kicker is that there's no way for the vendors to be legally armed at the gun show. :rolleyes:

From the oral arguments, it felt to me that at least one of the judges was fishing for a way to kick this case back down to a lower court.

I'm very curious to hear what our guy's take on this case is. Seems to me that the court could almost say, "Yes, strict scrutiny applies, but even so there's no 2A violation."

Window_Seat
10-19-2010, 9:21 PM
Justice: "Was the record developed that the Fairgrounds is a sensitive place, and therefore guns should be banned there?"

County Counsel: "Yes, the County’s position is it certainly was, we didn’t have the rubric of what is a sensitive place, but in terms of the sensitive places category, first of all, the Supreme Court has identified two very different locations; “Government buildings”, and “schools”. There are different things about those two locations that make them sensitive places. One way to look at that is to say the Court is indicating that there’s a Legislative role in deciding what’s a sensitive place, just as the Heffron Court looked at the Fairgrounds and determined in essence, this is a sensitive place with respect to assertion of First Amendment Rights, because we have crowd control issues; because we have people who come here with the expectation that the Governmental body is going to be protecting them while they are using the Fairgrounds for its principle purpose."

Justice: "But there’s no finding is there… by the trial Judge that this is or is not a sensitive place…"

County Counsel: "There’s no finding by the trial judge on that point, but if there’s sufficient evidence before this court, for the court to buttress it’s other findings regarding the Second Amendment with the conclusion that the Fairgrounds fits nicely within the category, then there is no reason to send it back to the trial court…"

Erik.

Liberty1
10-19-2010, 10:09 PM
Any transcripts? I don't have time to actually listen to it ...

But you have time to read it? So much is gained by voice inflection reading would not be the same.

hakcenter
10-19-2010, 10:21 PM
County Counsel :
[...] Eight gun shot victims the youngest was age eight. There were two other victims under the age eight-teen...
Fudge Judge : (I'm liking him just on everything he says..)
Was there any showing about... uhhhm victims uhhmm as a result about a gun show ?
County Counsel :
Thee... no, but[...]

I want him to say... you'll have to excuse me, but I'm far to busy.. being delicious.

Crom
10-19-2010, 10:59 PM
Thanks for posting the link to the audio. I just finished lisrening. Don did a great job. It's anybodys guess what the panel will do. I do get the feeling we could win here or go back to district court for trial. I just hope they dont take too long.

Maestro Pistolero
10-19-2010, 11:37 PM
Thanks for posting the link to the audio. I just finished lisrening. Don did a great job. It's anybodys guess what the panel will do. I do get the feeling we could win here or go back to district court for trial. I just hope they dont take too long.

Anybody's guess is right. I thought Alameda did well under the circumstances.
I would like to have seen Don take them to the mat on trying to tie unrelated shootings to the gun show, and perhaps hammer them a little more with comparisons to the 1st amendment. The county wouldn't dream of restricting books at a book show, even if some of the books were dangerous Nazi or KKK literature (despicable as it is).

I wouldn't even try to handicap this with someone else's money. I pray for strict scrutiny, or at least a reversal based on very narrow intermediate scrutiny.

pitchbaby
10-19-2010, 11:48 PM
posted this a bit ago in the Nordyke Orals III thread, but applies here also:

She wasn't just running up hill dude... she was "litigating" herself into a corner! I was sitting in that courtroom hearing her speak and thinking... "OK, she just said that the fairground needed to be considered a sensitive area similar to that of a courthouse and a school zone. Maybe then if all the counties across america that have firearms restrictions in courthouses AND school zones ALL agree to ALSO restrict firearms on their fairgrounds... she could possibly have a case"

Mr. Kilmer didn't catch her on that particular point... but I couldn't believe she did that to herself! I did however LOVE what Mr. Kilmer DID do to catch her in the end when he brought up the exception to the rule where courthouses DO allow firearms when they are the venue for a gun show... HAHAHA!!! Talk about socking it to her... OUCH!

Peter.Steele
10-20-2010, 8:41 AM
But you have time to read it? So much is gained by voice inflection reading would not be the same.


I'm in law school. You get pretty good at skimming and picking up on the important parts of cases and court documents / transcripts.

But, yeah, you get more out of listening, I agree. I'll see if I can get time today. Maybe.

uyoga
10-20-2010, 9:53 AM
The more I listen to the oral argument and the questions propounded by the court, the more I am inclined to consider the possibility that the court is leaning toward finding that the District court erred in denying the amendment of the complaint to include the Second Amendment cause of action, and remanding the case back to the District court for a decision based on the amended complaint.

I have very few times before wished I was as "wide of the mark" as I wish I am now on this reflection.

nomidlname
10-20-2010, 10:09 AM
This is awesome! Thank you! Does anyone know if the McDonald v. Chicago Audio was ever released?

Maestro Pistolero
10-20-2010, 10:55 AM
The other thread is now identical in topic to this one (http://www.calguns.net/calgunforum/showthread.php?t=354241). I suggest this be merged with the original thread.

Window_Seat
10-20-2010, 11:41 AM
This is awesome! Thank you! Does anyone know if the McDonald v. Chicago Audio was ever released?

Interesting (good question). No, I don't know if the McDonald audio has been released, I doubt it will.

On another related note, is it rare for the Circuit Court to remand if the facts are already there? It seems that the facts are already in existence... CCW is permitted at the fairgrounds, there are metal detectors, the County considers it a "sensitive place", but does not have a standard definition on what "sensitive place" is, and has not taken a legislative role on whether the fairgrounds is a sensitive place, so why would the court remand? Do they have to remand when reversing? Is it not a "no brainer" for the Court to figure this one out?

Not to forget about this part of the County Counsel's statement to the Court:

"...this is a sensitive place with respect to assertion of First Amendment Rights, because we have crowd control issues; because we have people who come here with the expectation that the Governmental body is going to be protecting them while they are using the Fairgrounds for its principle purpose."

I'm sure County Counsel is aware of Warren v. District of Columbia. 444 A.2d 1 (D.C. 1981), and the fact that there is no better case to look to when deciding whether or not Police, at times will or will not protect individuals at the Fairgrounds. If they are not required to protect individuals within the home, I don't see how they could be compelled to protect individuals in the fairgrounds. I hope that the Court will also look at this as well. Further, she admits that the County, nor the Legislature has not even bothered to define sensitive places more narrowly, and it's too broad. The Supreme Court in Heller just made it to be schools & government buildings (and in many cases, a school is a government building, no?).

Erik.

MCaN
10-20-2010, 11:58 AM
I'm sure County Counsel is aware of Warren v. District of Columbia. 444 A.2d 1 (D.C. 1981), and the fact that there is no better case to look to when deciding whether or not Police, at times will or will not protect individuals at the Fairgrounds. If they are not required to protect individuals within the home, I don't see how they could be compelled to protect individuals in the fairgrounds. I hope that the Court will also look at this as well. Further, she admits that the County, nor the Legislature has not even bothered to define sensitive places more narrowly, and it's too broad. The Supreme Court in Heller just made it to be schools & government buildings (and in many cases, a school is a government building, no?).

Erik.

IANAL, but my understanding is that Warren does not apply when you are disarmed by the proprietor of a facility. Once they have removed your ability to defend yourself, they have assumed the protection role. This could be incorrect, but in viewing the restrictions of firearms on military bases, schools, federal buildings, and the like, there is some measure of protection provided. Now, I can't cite any caselaw where a disarming authority has been sued for negligence for allowing an attack after disarming the victims, but that's not to say it isn't there.

ke6guj
10-20-2010, 12:40 PM
This is awesome! Thank you! Does anyone know if the McDonald v. Chicago Audio was ever released?

Interesting (good question). No, I don't know if the McDonald audio has been released, I doubt it will.


found it, http://www.oyez.org/sites/default/files/audio/cases/2009/08-1521_20100302-argument.mp3
http://www.oyez.org/cases/2000-2009/2009/2009_08_1521

nomidlname
10-20-2010, 12:46 PM
found it, http://www.oyez.org/sites/default/files/audio/cases/2009/08-1521_20100302-argument.mp3
http://www.oyez.org/cases/2000-2009/2009/2009_08_1521

Freakin awesome! Thank you so much!!

Bah! Darn work firewall preventing me from downloading the MP3. oh well... needed to go home anyways :)

Window_Seat
10-20-2010, 1:06 PM
ke6guj, YOU ARE THE DUDE!!!!!!!!!! THANKS!!!!!!!! DING DING DING, WE HAVE A WINNER!!!!!!!! :thumbsup:

Erik.

the_quark
10-20-2010, 1:53 PM
My question is when do we get the decision?

Whenever the judges see fit to issue it.

the_quark
10-20-2010, 1:55 PM
I am thinking that they are all out dining & drinking.

Yup, that was pretty much where we were. :D

Fjold
10-22-2010, 7:00 PM
http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000006368

Erik.

Thanks Eric. I'm finally home and able to listen to this.

Purple K
12-21-2010, 9:16 PM
Sixty days down.....

HowardW56
12-21-2010, 9:20 PM
Sixty days down.....


And too many more to go....

Blackhawk556
12-22-2010, 12:43 AM
I hope we don't have to wait another 2years :(

Dreaded Claymore
12-22-2010, 2:09 AM
County Counsel :
[...] Eight gun shot victims the youngest was age eight. There were two other victims under the age eight-teen...
Fudge Judge : (I'm liking him just on everything he says..)
Was there any showing about... uhhhm victims uhhmm as a result about a gun show ?
County Counsel :
Thee... no, but[...]

I want him to say... you'll have to excuse me, but I'm far to busy.. being delicious.

If I ever find out the name of this guy, I still won't call him anything but Fudge Judge. He is indeed scrumptious.

dantodd
12-22-2010, 10:35 AM
It would have been a nice Christmas gift but I doubt they'll publish between now and the new year.

The justices are so familiar with the case and have already written an opinion finding against the Nordykes but incorporating the second amendment. I think a longer delay works in our favor in this instance.

I would personally love to see an opinion written by Judge Gould, who wrote the following in the Nordyke II appellate opinion:

We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country
covertly by ocean routes, landing in small craft and then
assembling to wreak havoc. That we have a lawfully armed
populace adds a measure of security for all of us and makes
it less likely that a band of terrorists could make headway in
an attack on any community before more professional forces
arrived.

Liberty1
12-22-2010, 4:53 PM
If I ever find out the name of this guy, I still won't call him anything but Fudge Judge. He is indeed scrumptious.

Meet the Judge http://en.m.wikipedia.org/wiki/Diarmuid_O'Scannlain?wasRedirected=true

hoffmang
12-22-2010, 8:40 PM
There is no reason to expect that this opinion will linger past 90 days (aka another 30.) It doesn't surprise it's not out during the Holidays though as even Federal Judges enjoy the Season.

-Gene

jdberger
12-23-2010, 8:35 AM
You wouldn't know it by the way my month has been.

Sheesh!

Purple K
04-30-2011, 10:25 PM
Six months plus.... How obscene!

ddestruel
04-30-2011, 10:28 PM
Six months plus.... How obscene!

you're supposed to quote Gene and then rattle his prediction cage ;)




There is no reason to expect that this opinion will linger past 90 days (aka another 30.) It doesn't surprise it's not out during the Holidays though as even Federal Judges enjoy the Season.

-Gene

Purple K
04-30-2011, 10:32 PM
you're supposed to quote Gene and then rattle his prediction cage ;)

I left that up to you! :D

Paul S
04-30-2011, 11:17 PM
When pivotal cases such as these drag on seemingly forever my nefarious reasons meter begins to approach the peg.

I know jurists have full plates and bulging case loads...but come on your highness...er your honor!

Window_Seat
04-30-2011, 11:51 PM
Someone needs to go eat a sandwich and take a nap. :laugh:

Erik.

hoffmang
05-01-2011, 12:25 AM
you're supposed to quote Gene and then rattle his prediction cage ;)

:twoweeks:

-Gene

yakmon
05-01-2011, 12:39 AM
:beatdeadhorse5: :twoweeks: :beatdeadhorse5: :twoweeks:

yakmon
05-01-2011, 12:43 AM
oh, yea, there's this too.. :beatdeadhorse5: : we've been twisting our nipples off on this thing for years. and not just 2 but 5+, and more of us than me for 8+ years. the thing will take it's course. the course isn't driven by me, gene or anyone else. it's the judges.

johndoe2150
05-01-2011, 12:47 AM
:twoweeks: this could mean real time, or calguns time, but to me it. seems like iggy time :iggy:

yakmon
05-01-2011, 12:49 AM
i'd be more willing to put money into valve time (http://developer.valvesoftware.com/wiki/Valve_Time) than into CA9 time.

N6ATF
05-01-2011, 1:20 AM
Someone needs to go eat a sandwich and take a nap. :laugh:

Erik.

Or step in a carbon freezing chamber.

http://www.blogcdn.com/www.switched.com/media/2009/06/carbonite.jpg

Mike61982
05-01-2011, 2:49 PM
I just got done listening to the audio of this case. Its pretty cool how the county attorney stumbled alot on her answering of the judges questions.I think this case can be ruled anyway. I hope to see it ruled against the county. Let's just pray the judges have common sense and rule it our way...

ddestruel
05-01-2011, 10:01 PM
:twoweeks:

-Gene

woke you up from your hibernation:sleeping:. dust off that crystal ball it must have been fogged over last time.....;)

:eek:

hoffmang
05-01-2011, 10:13 PM
woke you up from your hibernation:sleeping:. dust off that crystal ball it must have been fogged over last time.....;)

:eek:

'Tis joke. Inexplicable delays so far...

But hey. It's a day of the unexpected. Who knows what tomorrow (or this week) brings.

-Gene

Window_Seat
05-02-2011, 12:27 AM
'Tis joke. Inexplicable delays so far...

But hey. It's a day of the unexpected. Who knows what tomorrow (or this week) brings.

-Gene

We could potentially have 2 days of good news in a row.

I can dream.

Dreams come true (sometimes).

Dreams, we can believe in. :eek:

Erik.