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View Full Version : (CO) Peterson v. LaCabe loss - Plt. MSJ Denied, Def-Intervenor MSJ Granted, Appeal


Gray Peterson
04-01-2011, 10:46 PM
All,

I realize because of the date this is being posted it'll be taken as an "April Fool". Unfortunately, it is not.

Docket (http://ia600202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.docket.html)

Defendant-Intervenor MSJ granted, Plaintiff MSJ (http://ia600202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.45.0.pdf)

Unfortunately, like his colleagues in Judge Gonzalez, the Maryland Court of Appeals, the entire New Jersey judiciary and the 4th Circuit Court of Appeals (US v. Mascandiaro) Judges, they are continuing to treat the 2A's "bear" as a second-class right. As Patrick-2 has stated, I was "2A Two-Stepped".

Heller indicates that the Second Amendment extends the strongest protection to the right of self-defense in the home. The statute at issue does not infringe on that right, even for Plaintiff, as he is permitted to have a firearm in any dwelling area under his control while in the state. C.R.S. 18-12-105(2)(a). Moreover, the statute burdens only a narrow class of persons, i.e., otherwise qualified out-of-state residents who wish to obtain a license to carry a concealed weapon in Colorado. Moreover, as noted above, the statute is even less restrictive that the federal statutes discussed in Reese and Skoien, as it does not completely prevent this class of persons from possessing firearms while in the state.

Rather, non-residents may carry openly outside of Denver and in Denver may have firearms in their private vehicles while traveling and in private dwelling areas. Therefore, it does not severely limit the possession of firearms but rather regulates “the manner in which persons may lawfully exercise their Second Amendment rights.” Marzzarella, 614 F.3d at 97; see also Peruta, 2010 WL 5137137 at *8 (applying intermediate scrutiny to concealed weapons permit regulation, and holding that licensing requirements did not violate Second Amendment because of state’s substantial interest in public safety and reducing the rate of gun use in crime).

Patrick-2 explained it this way:

The "2A Two-Step" is essentially this:
1. Find that the complaint (public carry, whatever) implicates the Second Amendment, but that it is not "core" to the right
2. Use that non-core finding to assign intermediate scrutiny, that in all effect is really rational basis - which allows the legislature to literally do anything they want.

Add the fact that Peruta v. County of San Diego was used pretty much exclusively against me. The only favor the judge did for us is that he released the decision 3 weeks after the MSJ's portion of it was complete.

Al Norris from TFL and here:


The trend is pretty clear. The lower courts, by and large, are using decisions in criminal cases to equate law-abiding citizens (and their civil rights) as being inherently dangerous. Therefore the ability of a State to regulate public safety must stand above this criminal aspect. They are intentionally misreading Heller by holding that "bear" only applies to inside the home, and that the four cases that Heller used to approve of CC restrictions applies, all the while ignoring that open carry was available, and that this was the point that made the restrictions valid.

A immediate announcement wasn't made because of decisions with the appeal and the costs issues.

Next week, an appeal to the United States Court of Appeal for the Tenth Circuit will be filed.

The CalGuns Foundation as an organization and certain individual directors of CGF has generously supported the Peterson case, and John Monroe is one of the best attorneys I've seen do excellent RKBA work.

As of now, Peterson v. LaCabe and Peruta v. County of San Diego are the two civil carry cases that are in the United States Court of Appeals level. The rest are currently in district court. The 10th Circuit's current case times are running about 10 months. I will be creating a thread specifically for the Court of Appeals docket to make sure people are updated, as RECAP will not work with the appellate courts.

I urge that whoever reads this thread to not react with despair and angst. These are the same lower courts who intentionally misinterpreted US v. Miller to give birth to the federal version of the collective rights theory. The only court who's opinion matters on the issue of carry at this point is the 6 Justices of the Supreme Court who have not voted to overturn Heller and McDonald. We only need to count to 5 in this case. That, in the end, is the final play, and as Gene would say, Freedom isn't Free.....

safewaysecurity
04-01-2011, 10:50 PM
Man that sux.

Gray Peterson
04-01-2011, 10:59 PM
Man that sux.

I can tell you that there's no amount of profanity on this earth that would cover my feelings on this. You add the factor of another case being used against mine and the underlying issues with that, it's just a matter of total fail.

It's pretty obvious to judge punted the case, using criminal cases as his book-end. The only thing I'm glad for is the fact that he did so quickly, similar to what the 7th Circuit did in McDonald.

nick
04-01-2011, 11:01 PM
Despair, sure, there's no need for that. Anger, well, how can one not be angry at something like this? Oh well, what counts is the final destination.

Shiboleth
04-01-2011, 11:04 PM
As much as it's necessary for things to wind up the system to higher courts for more widely applicable precedent, it's still always initially disheartening to see bad decisions being made.

ETA: My disgust at judge England's decision gets multiplied each and every time it gets cited against us...

Gray Peterson
04-01-2011, 11:07 PM
As much as it's necessary for things to wind up the system to higher courts for more widely applicable precedent, it's still always initially disheartening to see bad decisions being made.

Yes indeed it is. I am however, keeping my chin up. Onward and upwards....

Window_Seat
04-01-2011, 11:41 PM
Gray,

Thank you for bringing this lawsuit, and I am certain that we will prevail. As you stated, onward & upwards with our chins up. They can't keep winning, and it only takes one loss at the SCOTUS level for them, especially after Nordyke SS (which I'm confident we will get). Meanwhile, onto the 10th!

Erik.

stitchnicklas
04-01-2011, 11:43 PM
we need a real president in office who will enforce the constitution for once...

Apocalypsenerd
04-01-2011, 11:47 PM
Keep at it. I'm confident in the end we win the majority of this fight. It will take a while, but I think the antis have lost the battle of reason and facts. Social perception will change and this will get easier.

Blackhawk556
04-02-2011, 12:53 AM
This sucks. I just hope a good carry case reaches the Supremes soon

Sent from my SGH-i917 using Board Express

nicki
04-02-2011, 1:48 AM
We are going to have arrogant lower courts, but rather than getting mad and frustrated, we should just smile and turn the other cheek.

The Scotus will get a carry case and when they do, they are going to drop the hammer, and it will be a SLEDGE HAMMER at that, here is why.

The Heller case was cyrptic, Scalia didn't give us incorporation, but he warned the lower courts not to rely on old case law, so what does the 7th circuit do.

They give the SCOTUS MacDonald and the SCOTUS Hammered Chicago.

The Supreme court does not like being ignored by the lower courts, as such, when a CCW case hits the SCOTUS, expect the ***t to hit the fan.

Lower court bs is what gives the SCOTUS stuff to legislate against.

Nicki

press1280
04-02-2011, 3:17 AM
After seeing this happen I'm pretty much resigned to the fact we'll probably lose all "bear" cases in the district court and possibly the appeals court. My hope is the "right" case gets to SCOTUS before the "wrong" one does. I'm hoping the 10th Circuit essentially does a pass through and rules quickly so this can get to SCOTUS. With the lower courts doing next to no historical analysis of the 2A(and booting the issue alltogether), I would think a circuit split may not be a necessity for certiorari.
Gray-you mentioned 10 months in the circuit. Is that 10 months from the initial appeal to a decision, or 10 months for a decision from oral arguments?

Funtimes
04-02-2011, 3:20 AM
We are going to have arrogant lower courts, but rather than getting mad and frustrated, we should just smile and turn the other cheek.

The Scotus will get a carry case and when they do, they are going to drop the hammer, and it will be a SLEDGE HAMMER at that, here is why.

The Heller case was cyrptic, Scalia didn't give us incorporation, but he warned the lower courts not to rely on old case law, so what does the 7th circuit do.

They give the SCOTUS MacDonald and the SCOTUS Hammered Chicago.

The Supreme court does not like being ignored by the lower courts, as such, when a CCW case hits the SCOTUS, expect the ***t to hit the fan.

Lower court bs is what gives the SCOTUS stuff to legislate against.

Nicki

We can only hope nicki.

Gray Peterson
04-02-2011, 5:03 AM
After seeing this happen I'm pretty much resigned to the fact we'll probably lose all "bear" cases in the district court and possibly the appeals court. My hope is the "right" case gets to SCOTUS before the "wrong" one does. I'm hoping the 10th Circuit essentially does a pass through and rules quickly so this can get to SCOTUS. With the lower courts doing next to no historical analysis of the 2A(and booting the issue alltogether), I would think a circuit split may not be a necessity for certiorari.
Gray-you mentioned 10 months in the circuit. Is that 10 months from the initial appeal to a decision, or 10 months for a decision from oral arguments?

10 months from filing to decision.

PatriotnMore
04-02-2011, 5:38 AM
Gray, I would also like to thank you for being a 2A warrior for us.

The level of intellectual dishonesty shown in that ruling is not only unprofessional, it is a slap in the face to the Constitution, and the Framers.

The level of political shenanigary, and how low some Justices will stoop to make law(s) on issues they oppose, regardless of the Constitution, is frightening and leads down a slippery slope, which comes crashing down onto a pile of corruption in our legal system.

ETA: perhaps you may want to pass along this judgment to Judicial Watch, we may get some national exposure on it. http://www.judicialwatch.org/contact
Also, contacting Judge Napolitano from Freedom Watch, may get us some air time. http://www.judgenap.com/contact/

OleCuss
04-02-2011, 6:16 AM
After seeing this happen I'm pretty much resigned to the fact we'll probably lose all "bear" cases in the district court and possibly the appeals court.
.
.
.

Yeah, I think that just about everything District Court and below is a losing proposition. Not even sure that I think that we should win in that level if one accepts the current way that the courts work as a proper one.

But there are some chances for wins at the Circuit Court level. The Circuit Courts tend to have a somewhat different role in producing jurisprudence and I have a somewhat different expectation from them.

As I see it, you file your case and work through the lower courts in order to prep it for the Circuit Court and SCOTUS. After SCOTUS rules on scrutiny you'll start to see things start to change in the lower courts but they'll really start to change when a case has gotten up to the relevant Circuit Court and the Circuit Courts start slapping down the District Courts.

Until then, expect a loss and understand that you're just prepping for the higher courts. When you expect it, it isn't quite as frustrating.

press1280
04-02-2011, 7:55 AM
Gray, I would also like to thank you for being a 2A warrior for us.

The level of intellectual dishonesty shown in that ruling is not only unprofessional, it is a slap in the face to the Constitution, and the Framers.

The level of political shenanigary, and how low some Justices will stoop to make law(s) on issues they oppose, regardless of the Constitution, is frightening and leads down a slippery slope, which comes crashing down onto a pile of corruption in our legal system.

ETA: perhaps you may want to pass along this judgment to Judicial Watch, we may get some national exposure on it. http://www.judicialwatch.org/contact
Also, contacting Judge Napolitano from Freedom Watch, may get us some air time. http://www.judgenap.com/contact/

Worth a shot however these cases may be too "in the weeds" for the run of the mill viewer. But it might shed a light on these judges trying to confine the 2A into the home.

OleCuss
04-02-2011, 8:19 AM
I don't think these judges are necessarily really trying to restrict the RKBA.

As I see it, the judges are doing their job as they see it. It is my understanding that the courts (especially the lower courts) are following a rule or principle that sort of says that they should interpret the SCOTUS rulings and such in a manner that is least disruptive to current law and jurisprudence.

Since we have not had a SCOTUS finding for strict or intermediate scrutiny, one should expect the lower courts to rule in the least disruptive fashion - which is effectively Patrick-2's 2-Step.

Net effect is that the lower court judges are doing their job as expected. We just need somethings like Chester and Nordyke to get up to SCOTUS soon and then we'll start to get the results we want and are due.

Gura, Kilmer, etc. have understood this all along. Else why did they file or re-cast cases almost immediately after McDonald came out? It has been understood that we will have to have SCOTUS make a scrutiny determination in order to make this work.

I think that the ruling in McDonald effectively acknowledged that the issue would be returning. I think that is why the term "fundamental" was used so often. By having the RKBA ruled "fundamental" it sets the tone for their scrutiny determination when Chester gets to them - and allowed the 4th Circuit to make the scrutiny decisions it made in the first place.

But don't expect the lower courts to fix things until the Circuits and SCOTUS do.

press1280
04-02-2011, 9:39 AM
But if that's the case then we shouldn't even bother with the district or appeals court-no historical analysis, no nothing. They are adding nothing to each case.

Paladin
04-02-2011, 9:51 AM
Unfortunately, I am not as optimistic since there are risks that the composition of the Court may change before it decides these issues.

All it takes is Scalia having a major stroke, or Thomas getting into a very serious auto accident, or something worse, and we could be ****ed. Remember, Repubs just took back the House, not the Senate. It is the Senate which consents to fed ct nominees or not.

Plus, Obama may get reelected in 2012. Many thought Clinton would not be reelected in '96, but he was.

IOW, a LOT of people on our side have been dismissing the political side of our fight, saying that it will all be decided by the fed cts and that it is just a matter of time before we win. That is based on the false assumption that the Court's composition will not change before then. It can. Our RKBA is still at risk. We still need to increase the NRA's membership since they are our best hope in getting a pro-RKBA majority in the US Senate and preserving it in the federal courts, esp SCOTUS, and electing a pro-RKBA president in 2012.

ETA: But apparently even many CGNers who spend time over in OT don't realize the importance of NRA membership (and activism):
http://www.calguns.net/calgunforum/showthread.php?t=415041

About the only good thing re. this is that the decision came out quickly so an appeal can be filed quickly.

jtmkinsd
04-02-2011, 10:04 AM
Seems like they will evade and subvert the true meaning of Heller to the bitter end. :mad:

Gray Peterson
04-02-2011, 12:11 PM
But if that's the case then we shouldn't even bother with the district or appeals court-no historical analysis, no nothing. They are adding nothing to each case.

Article III is clear. The Supreme Court is for almost all intents and purposes an appellate court. There are very few circumstances were a court can directly hear a case of first instance.

We have to go through this process, and there's no shortcuts for us.

wildhawker
04-02-2011, 12:45 PM
SCOTUS has original jurisdiction in a fleetingly small number of issues.

press1280
04-02-2011, 1:56 PM
Article III is clear. The Supreme Court is for almost all intents and purposes an appellate court. There are very few circumstances were a court can directly hear a case of first instance.

We have to go through this process, and there's no shortcuts for us.

Then it should just be an easy matter to get the easy stuff out of the way(standing,exc.), then send the cases onward and upward. If they "can't" make a ruling on the 2A outside the home, then there should be no reason to hold on to a case longer than 3 months or so.

Californio
04-02-2011, 2:28 PM
Unfortunately, I am not as optimistic since there are risks that the composition of the Court may change before it decides these issues.

All it takes is Scalia having a major stroke, or Thomas getting into a very serious auto accident, or something worse, and we could be ****ed. Remember, Repubs just took back the House, not the Senate. It is the Senate which consents to fed ct nominees or not.

Plus, Obama may get reelected in 2012. Many thought Clinton would not be reelected in '96, but he was.

IOW, a LOT of people on our side have been dismissing the political side of our fight, saying that it will all be decided by the fed cts and that it is just a matter of time before we win. That is based on the false assumption that the Court's composition will not change before then. It can. Our RKBA is still at risk. We still need to increase the NRA's membership since they are our best hope in getting a pro-RKBA majority in the US Senate and preserving it in the federal courts, esp SCOTUS, and electing a pro-RKBA president in 2012.


Thats my take, stall, stall, stall and one of the Five will be gone. It is all Political. The Constitution should not be held hostage by Politics but in reality it always has been.

hill billy
04-02-2011, 2:35 PM
Gray, thanks for your hard work and dedication. Here is to six more trouble free years for the Court so that we can get these issues resolved.

glockman19
04-02-2011, 2:42 PM
Therefore, it does not severely limit the possession of firearms but rather regulates “the manner in which persons may lawfully exercise their Second Amendment rights.”

Wouldn't this be "INFRINGING"?

This the next part of the 2A that the SCOTUS needs to address. At what point is "regulating" infringing?

I say any regulation is an infringement.

The sooner they address this the sooner we will all be able to legally carry a concealed firearm wihtout a permit.

Dreaded Claymore
04-02-2011, 3:02 PM
This is disappointing news. But although we are angry and afraid, we will persevere, for we are stronger than fear.

Wouldn't this be "INFRINGING"?

This the next part of the 2A that the SCOTUS needs to address. At what point is "regulating" infringing?

When it effectively prevents people from exercising the right in question. However it is not infringing if it makes restrictions on the time, place, and manner of the exercise of the right, if these restrictions do not prevent the exercise of the right.

I say any regulation is an infringement.


Maybe. However, the lawyers on our side do not agree. (http://www.calguns.net/calgunforum/showthread.php?t=415700)

Don29palms
04-02-2011, 3:36 PM
There ought to be penalties on judges ruling unconstitutionally.

Hunt
04-02-2011, 3:50 PM
I like Nicki's observation but what happens if in the next 3-4 years we get a majority anti ccw SCOTUS then a ccw case gets in the docket? I think the issue to be concerned with is court majority make up, not law, morality, justice or Constitution, after all, based upon "their opinions" they can vote your rights right down the toilet.

kcbrown
04-02-2011, 3:57 PM
We are going to have arrogant lower courts, but rather than getting mad and frustrated, we should just smile and turn the other cheek.

The Scotus will get a carry case and when they do, they are going to drop the hammer, and it will be a SLEDGE HAMMER at that, here is why.

The Heller case was cyrptic, Scalia didn't give us incorporation, but he warned the lower courts not to rely on old case law, so what does the 7th circuit do.

They give the SCOTUS MacDonald and the SCOTUS Hammered Chicago.

The Supreme court does not like being ignored by the lower courts, as such, when a CCW case hits the SCOTUS, expect the ***t to hit the fan.

Lower court bs is what gives the SCOTUS stuff to legislate against.


I think we're going to see, for the first time in a very long time, the lower courts pushing SCOTUS to the absolute limit. That is, I believe we're going to see some of the lower courts outright ignoring the admonitions of SCOTUS time and time again.

I think we're going to get the opportunity to witness just what power SCOTUS really has over the lower courts.

There's nothing like a right that many regard as "dangerous" to cause people in power to behave foolishly.

kcbrown
04-02-2011, 3:59 PM
I can tell you that there's no amount of profanity on this earth that would cover my feelings on this. You add the factor of another case being used against mine and the underlying issues with that, it's just a matter of total fail.

It's pretty obvious to judge punted the case, using criminal cases as his book-end. The only thing I'm glad for is the fact that he did so quickly, similar to what the 7th Circuit did in McDonald.

Gray, I can't tell you how happy I am that you're fighting this fight.

Unfortunately, I am also entirely unsurprised by the ruling that was issued here.

Fortunately, we know you're a fighter and will take this as high as it needs to go.

Go get 'em!

N6ATF
04-02-2011, 4:06 PM
I think we're going to see, for the first time in a very long time, the lower courts pushing SCOTUS to the absolute limit. That is, I believe we're going to see some of the lower courts outright ignoring the admonitions of SCOTUS time and time again.

I think we're going to get the opportunity to witness just what power SCOTUS really has over the lower courts.

There's nothing like a right that many regard as "dangerous" to cause people in power to behave foolishly.

The previously explained "penalties" for recalcitrant lower court judges are a big :yawn: - when SCOTUS starts ordering their subordinate justices held in federal cells for contempt alongside the state and municipal officials they conspire with to violate civil rights, THEN they will show they are not to be trifled with. But if this didn't happen in the 60s, I doubt it will happen now.

CaliforniaLiberal
04-02-2011, 4:17 PM
Thank You Gray for stepping up to do the legal work on behalf of all of us to restore all of our 2nd Amendment Rights. Know that we're with you and are backing you up for the long haul. And also your posts and the posts of many others are a good, scratch legal education that we all need to follow the legal plays.

I'm making another CalGuns Foundation donation in your name to keep the wheels turning.

Broadhead
04-23-2011, 11:50 AM
I have been following this one, and can't believe the judge could rule that way. Correct application of Heller and McDonald, to me, mandates "keep and bear" in public places in some fashion. If Denver requires concealment and permits, that should force open carry with no permit. If a jurisdiction requires a permit for carry, it should force shall-issue there too.

Gotta hope the current SCOTUS can get to such a ruling in some case before one of the conservative justices must leave.

Andy Taylor
04-23-2011, 1:21 PM
Gray, Thank you.
God bless and good luck.