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Lex Arma
06-14-2011, 8:37 AM
The Ninth Circuit issued an order on June 13, 2011 directing the Appellees (Alameda County) to file a response to the Nordykes' Petition for Rehearing and Petition for Rehearing En Banc. That response is due within 21 days of the June 13, 2011 Order.

The only absolutely safe conclusion that can be drawn is the Petition for Rehearing and Petition for Rehearing En Banc was not summarily denied.

If pushed to venture a speculative assessment of this development, it may (emphasis on may) mean that the May 2, 2011 opinion will be modified.

SanPedroShooter
06-14-2011, 8:39 AM
+1;)

OleCuss
06-14-2011, 8:40 AM
Really fascinating! Thank you for the update!

The Shadow
06-14-2011, 8:43 AM
I'm glad that you and the Nordykes have taken on this task. If it had been me, I would have been over it a long time ago.

uyoga
06-14-2011, 8:47 AM
Let's hope for the best.

Window_Seat
06-14-2011, 9:09 AM
...
If pushed to venture a speculative assessment of this development, it may (emphasis on may) mean that the May 2, 2011 opinion will be modified.

Is this possible without an en banc hearing that a panel could make that modification, and has this happened with other cases before?

**ETA**

...
Petition for Rehearing and Petition for Rehearing En Banc
...

I always thought that anything reheard in the courts would have to automatically be reheard by an en banc panel?

Otherwise... :popcorn:

Erik.

hill billy
06-14-2011, 10:23 AM
I hope someday to buy the Nordykes and yourself a tall cold one. It takes a great deal of persistence and dedication to keep fighting. Thanks.

Lex Arma
06-14-2011, 10:25 AM
Is this possible without an en banc hearing that a panel could make that modification, and has this happened with other cases before?

I always thought that anything reheard in the courts would have to automatically be reheard by an en banc panel?

Otherwise... :popcorn:

Erik.


There are technically two petitions pending: (1) rehearing before the same panel, and (2) rehearing en banc.

Either one can be decided without further briefing, depending on what the Court wants to do. Most petitions for either kind of rehearing result in summary denial. Minor amendments to the opinion might be handled summarily without further briefing. Substantive changes usually don't happen without giving both sides an opportunity to have a say, which can include anything from: asking the other side to file a response (that is what happened here) up to granting a rehearing and/or rehearing en banc and ordering another round of briefs.

Or the Court might reconsider its opinion in light of what the County files and still deny both or either petition.

The only thing we can say with any certitude is that we are going into extra innings here in the Ninth Circuit before moving up to SCOTUS or back down to the trial court.

Blackhawk556
06-14-2011, 10:32 AM
I seriously hope this gets modified because after readying that decision, my hope for Peņa and other 2A cases being successful went down the drain. The decision seems to include so much ammunition for the antis to use in future cases.

wash
06-14-2011, 10:46 AM
I see it as a dare.

If an en banc doesn't clean it up, it creates a circuit split and that would give it a really great chance of getting to SCOTUS.

If the three judge panel had given us a good decision with strict scrutiny as the standard, the en banc (which would be called) would probably say the ban does not withstand intermediate scrutiny and leave us stuck with that until we get another case that can force that through.

I'm very optimistic about this but we might not get our big win for a while.

PatriotnMore
06-14-2011, 10:57 AM
Glad to hear. I really get upset over, what I see as, the political gerrymandering by justices in this case. I really want to thank the Nordykes, Donald Kilmer and all the Attorney's and law firms fighting for them on this case. Go get em.

dantodd
06-14-2011, 11:03 AM
Sadly, I suspect this is little more than a plan to burn up Don's time and money and keep it out of SCOTUS until it can be mooted. It would be better for CA9 if someone else is the sacrificial lamb in this case, they don't really want a big 2A case overturned.

Crom
06-14-2011, 11:07 AM
Don, Thank you for keeping us all in the loop. :)

Lex Arma
06-14-2011, 11:11 AM
Sadly, I suspect this is little more than a plan to burn up Don's time and money and keep it out of SCOTUS until it can be mooted. It would be better for CA9 if someone else is the sacrificial lamb in this case, they don't really want a big 2A case overturned.

Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."

PatriotnMore
06-14-2011, 11:18 AM
Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."

Maybe you nick name should be the Bull Dog. I would say Bastard of Bastogne, but it doesn't work.:)

OleCuss
06-14-2011, 12:37 PM
Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."

Yup, and skill and determination won the day. Y'all have shown that you've got the skill and determination as well. With a little break you'll win a great victory for us all.

I think I'll still have to be a little patient, however. . .

BTW, as a non-lawyer and a non-courtwatcher, my assumption is that the 9th Circuit views the petition for re-hearing to be quite persuasive and they're trying to find an excuse to turn down the request.

The delay is frustrating, but I think the odds of getting to SCOTUS in the foreseeable future are pretty decent.

Even if I'm all wrong about how things will go in the future - I'm incredibly impressed by what you and the Nordykes have done.

IGOTDIRT4U
06-14-2011, 12:51 PM
Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."



"A man that eloquent has to be saved!" ~ Patton

dantodd
06-14-2011, 3:38 PM
Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."

I have no doubt that you will persevere and succeed. I just wish it didn't feel like the courts were working against you so hard. It would be nice if your only enemy in this fight was Alameda and not Alameda and the 9th Federal Circuit. (I am sure you cannot say that, but I can.)

hoffmang
06-14-2011, 9:28 PM
"A man that eloquent has to be saved!" ~ Patton

Or keep his case alive long enough for the legal environment to improve to the point he can win! :p

-Gene

Lex Arma
06-14-2011, 10:03 PM
Or keep his case alive long enough for the legal environment to improve to the point he can win! :p

-Gene

Without any delusions of grandeur, Scott filed his second case claiming emancipation in 1853. SCOTUS handed down Scott v Sanford in 1857. Unfortunately Mr. Scott died in 1858 taking the loss to his grave. Imagine if he had lived to see the ratification of the Constitutional Amendment (XIV) in 1868 that vindicated him and overruled that blight upon the Court.

Mr. Scott is my inspiration to keep plugging away at Nordyke.

jdberger
06-15-2011, 12:17 AM
Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."

One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)

hoffmang
06-15-2011, 12:27 AM
One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)

And the ability to continue to hold annual Nordyke dinners!

-Gene

jdberger
06-15-2011, 12:28 AM
BINGHAM!

wildhawker
06-15-2011, 12:31 AM
BINGHAM!

****er.

Now, where's my CGF shotglass?

hoffmang
06-15-2011, 12:41 AM
****er.

Now, where's my CGF shotglass?

BINGHAM

Burp.

-Gene

wildhawker
06-15-2011, 12:47 AM
BINGHAM

Burp.

-Gene

I have a hearing tomorrow. We are NOT DOING THIS TONIGHT DAMMIT. :chris::43:

-Brandon

Liberty1
06-15-2011, 12:53 AM
One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)

Chesty Puller

http://en.m.wikipedia.org/wiki/Chesty_Puller

http://m.youtube.com/index?desktop_uri=%2F&gl=US#/watch?v=9EOeSVDGkb4

2Bear
06-15-2011, 1:07 AM
Now, where's my CGF shotglass?

http://gallery.me.com/therobthomas/100057/CGF_tumbler/web.jpg

(Hic!)

Lex Arma
06-15-2011, 5:09 AM
BINGHAM!

I count several BINGHAMs. I am ready for a chaser.

D-Man
06-15-2011, 5:31 AM
One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)

Chesty Puller at the Chosin Resivoir during the Korean war. Semper Fidelis!

anthonyca
06-15-2011, 6:08 AM
Thank you for fighting this epic battle.

Sorry for the thread jack, but thank you for this also. http://calguns.net/calgunforum/showthread.php?t=417935

Is there any insight you can safely speak of regarding Enos v Holder? The courts move so slow to us laymen and the wait is agonizing.

Lex Arma
06-15-2011, 6:21 AM
Thank you for fighting this epic battle.

Sorry for the thread jack, but thank you for this also. http://calguns.net/calgunforum/showthread.php?t=417935

Is there any insight you can safely speak of regarding Enos v Holder? The courts move so slow to us laymen and the wait is agonizing.

Still waiting for Court's ruling on govt's motion to dismiss.

Andy Taylor
06-15-2011, 8:14 AM
One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)

General Lewis Burwell "Chesty" Puller

bulgron
06-15-2011, 9:27 AM
I wonder if Alameda is sorry they started this fight.

nicki
06-15-2011, 9:49 AM
Seems to me one of the issues is the "sensitive zone" issue.

The "Sensitive Zone" issue IMHO doesn't just substantially burden the right of self defense, it eliminates it.

As such, any area IMHO that is declared a "Sensitive Zone" must have a "compelling public interest" that it requires suspension in that zone of a person's fundamental right.

I haven't heard anyone put forth arguments for setting "criteria" for a sensitive zone. Perhaps this is where we could go.

So, here are Nicki criteria.

1. What in the "sensitive zone" is so "sensitive" that it requires suspension of a person's fundamental right of self defense when they are in the zone?

Is this zone a 24/7/365 zone or is it limited hours?

2. Is this zone marked so that someone with arms just can't walk into it inadvertently.

This zone needs to be kept to a minimum in size.

Does this zone include private property that the owners get to keep arms themselves? If so, why?

3. Does the zone have security to screen all those who enter the zone to ensure that arms are not brought in?

4. In the event that the security zone is breached by armed individuals, does the zone have a armed security force immediately available to deal with those armed intruders?

Does the fairgrounds ever have events with anything that causing injuries or deaths in society. Things like CAR SHOWS, Knives or swords, sporting goods like ski, sky diving etc. Maybe a equal protection angle?

Who was on the county board of supervisors when this whole case started?

Perhaps this could give a clue, especially if they went on to higher office and sponsored gun legislation.

Nicki

OleCuss
06-15-2011, 10:37 AM
Nicki:

I like your logic.

I'd also note that if vehicles are used then it is not a sensitive place. A 2 ton vehicle (at least in some contexts) is far more deadly than is my Glock.

yellowfin
06-15-2011, 11:51 AM
I wonder if Alameda is sorry they started this fightThus far there haven't been any consequences to them, at least none that hurt bad enough for them to change their ways.

Sgt Raven
06-15-2011, 8:42 PM
One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)

"We're surrounded. That simplifies the problem!"
CHESTY PULLER, USMC

Patrick-2
06-16-2011, 4:32 AM
Seems to me one of the issues is the "sensitive zone" issue.

The "Sensitive Zone" issue IMHO doesn't just substantially burden the right of self defense, it eliminates it.

As such, any area IMHO that is declared a "Sensitive Zone" must have a "compelling public interest" that it requires suspension in that zone of a person's fundamental right.

I haven't heard anyone put forth arguments for setting "criteria" for a sensitive zone. Perhaps this is where we could go.

So, here are Nicki criteria.

...

Nicki

Nice.

I think we could simplify the whole situation considerably with one simple rule: "When exercising authority over of the right to self-defense, the government must accept responsibility for the outcome."

This is an offshoot of the most simple rule I use in my life: "Responsibility must come with authority. Authority must take responsibility. If ever you are offered responsibility without authority, turn it down. If ever you are given authority without responsibility, be exceptionally fearful."


I think this approach melds into existing jurisprudence quite well. We already know that the government and law enforcement are not 'responsible' for saving you. They can try, but don't have to. The Supreme Court made clear we are on our own, legally-speaking.

We also now know that we have a right to self-preservation.

Add the two together, and the Constitution basically says: "Suck it. You are responsible for your own personage, and here is the authority (2A) you can use to effect the outcome."


My Thesis: If the government wishes to take your authority (sensitive places), then they must also accept responsibility for the outcomes while your authority is abrogated.


I think this is where Scalia was going in his dicta. Each of the places he mentions has some type of authority in power (jails, schools, courthouses, etc.) that accepts responsibility for the security of that place. You can over-read the use of the word 'schools', but we are cautioned to not parse individual words in dicta.

So simply put, sensitive places must come with security - and the government must work to ensure the safety of everyone in that location. And when they fail to do that?

Responsibility means they pay when they are negligent. Note that not every crime can be prevented, but they must never 'fail to respond' and they must be staffed to a level commensurate to prevent most threats from occurring. So a jail or criminal courthouse would require quite a few guards, but an elementary school not so much (maybe mindful teachers is enough).

Taken this way, the list of sensitive places would be much, much smaller. Frankly, I would imagine the government actively working to reduce the size, scope and location of 'sensitive places' just to avoid the responsibility. Especially municipal governments: by declaring a place 'sensitive' they would be obligated not only to protect it, but to also indemnify it. Ouch.

Simple. Clean. Balanced.

Mulay El Raisuli
06-16-2011, 5:09 AM
Nicki:

I like your logic.

I'd also note that if vehicles are used then it is not a sensitive place. A 2 ton vehicle (at least in some contexts) is far more deadly than is my Glock.


I like Nicki's logic. I like your logic. What Patrick-2 had to say thrills me also.

But you're all applying logic. Gun grabbers don't have logic. Don't recognize logic. Don't care about logic.


The Raisuli

Cnynrat
06-16-2011, 6:53 AM
I like the thought process. I also recognize the anti's wouldn't follow that logic, but then that's the crux of how we got where we are anyway.

Could this be extended to private property? For example, if my employer denies me my authority for my seflf defense (2A rights) while on his property, does he now become responsible for my safety and fully liable in the event I am injured or killed?

Patrick-2
06-16-2011, 9:02 AM
I like Nicki's logic. I like your logic. What Patrick-2 had to say thrills me also.

But you're all applying logic. Gun grabbers don't have logic. Don't recognize logic. Don't care about logic.


The Raisuli

Thrilling you scares me. ;)

I like the thought process. I also recognize the anti's wouldn't follow that logic, but then that's the crux of how we got where we are anyway.

Could this be extended to private property? For example, if my employer denies me my authority for my seflf defense (2A rights) while on his property, does he now become responsible for my safety and fully liable in the event I am injured or killed?

I suggest that the topic is already open and accessible to the courts. Heller did nothing to reduce the concept, and you can argue that Scalia actually reinforced the notion that while sensitive places exist, they are limited to those places where a responsible authority figure is appropriately placed for the provision of safety.

I see the argument over sensitive places framing around this concept. We have to define them somehow - something more than legislative intent. The problem is that the legislative is more likely to be knowledgeable of the details of the proposed 'place', so their role is obvious but cannot be unrestrained. Forcing them to take responsibility for their legislative enactments is an initial check on abuse, but not the only one.

Existing jurisprudence already says we are on our own when it comes to preservation - that the government has no duty to protect. But now we have jurisprudence to the effect that in support of our preservation - that we alone are responsible for - we can use tools.

So the jurisprudence on the Constitution already says: You are responsible for your own preservation, here are some tools to affect the outcome of this nasty world.

Government cannot take the authority (the tools) without also taking the responsibility for the outcome.

Like I said, I suspect this is where sensitive place arguments are going to end up. Initially there will be cases over what limitations may exist within them, but eventually we will get down to the nitty-gritty of just what they are from a constitutional and philosophical standpoint. I doubt the court mentioned them without great forethought. They teed this one up.


Could this be extended to private property? For example, if my employer denies me my authority for my seflf defense (2A rights) while on his property, does he now become responsible for my safety and fully liable in the event I am injured or killed?

Doubtful.

Also, depends on how 'private' the property might be. Shopping malls corridors are sometimes considered "public spaces" under the law, while the individual shops are not. I think there are so many shades of gray here that we would need some type of initial answer on sensitive places before we even consider private/semi-public ones. But overall I would say the closer you get to "public" (malls, closed street venues like 3rd Street in Santa Monica, Pier Ave in Hermosa, etc.) the farther you get from constitutional restrictions.

choprzrul
06-16-2011, 9:16 AM
I suggest that the topic is already open and accessible to the courts. Heller did nothing to reduce the concept, and you can argue that Scalia actually reinforced the notion that while sensitive places exist, they are limited to those places where a responsible authority figure is appropriately placed for the provision of safety.

I see the argument over sensitive places framing around this concept. We have to define them somehow - something more than legislative intent. The problem is that the legislative is more likely to be knowledgeable of the details of the proposed 'place', so their role is obvious but cannot be unrestrained. Forcing them to take responsibility for their legislative enactments is an initial check on abuse, but not the only one.

Existing jurisprudence already says we are on our own when it comes to preservation - that the government has no duty to protect. But now we have jurisprudence to the effect that in support of our preservation - that we alone are responsible for - we can use tools.

So the jurisprudence on the Constitution already says: You are responsible for your own preservation, here are some tools to affect the outcome of this nasty world.

Government cannot take the authority (the tools) without also taking the responsibility for the outcome.

Like I said, I suspect this is where sensitive place arguments are going to end up. Initially there will be cases over what limitations may exist within them, but eventually we will get down to the nitty-gritty of just what they are from a constitutional and philosophical standpoint. I doubt the court mentioned them without great forethought. They teed this one up.

Oh yeah, I like this line of reasoning. This opens a can of liability worms for government entities that ban 'defense tools' from certain areas. They become instantly liable for my safety in those areas. I am curious if all CCW issuing authorities that deny an application are in fact accepting responsibility for that citizen's safety in ANY area where CCW isn't allowed (i.e. beyond a home or business where a permit isn't required).

Stop and ponder exactly how they would have to implement protective services for each person who they deny a CCW app for. They would have to assign an officer to each person who has been denied.

Is this area ripe for personal injury lawsuits against issuing agencies based upon denials???

.

Peaceful John
06-16-2011, 9:47 AM
Responsibility means they pay when they are negligent. Note that not every crime can be prevented, but they must never 'fail to respond' and they must be staffed to a level commensurate to prevent most threats from occurring. So a jail or criminal courthouse would require quite a few guards, but an elementary school not so much (maybe mindful teachers is enough).

P-2, you clearly have a fully developed sense of humor!

Cordially,
John

Patrick-2
06-16-2011, 11:03 AM
Actually, I was being serious. The response should match the threat. Despite the various stories about school massacres over the years, elementary schools are generally safe places. Doors are locked to the outside, except for entrances controlled and monitored by central staff. That should be enough to claim that some level of protection exists. Not every schools needs to be guarded against an invasion...though maybe some would. My high school was pretty bad and had drive-by's before they were fashionable to rap about. Also, the kids would not have access to arms, anyway.

Colleges are a different animal. Real crime against persons occurs with regularity. It'd be tough to argue that the entire campus was a sensitive place if the school was held responsible for negligence in not patrolling the remote parking lot at late night when a coed is raped. Taking her defense weapon means they take some of her responsibility for preservation, as well.

This is why I think this model works better than trying to create a system of rules based on known places. We would constantly be comparing one place against another, looking for some kind of amalgam. At the same time, the initial rules would have to come from somewhere. The legislature? That is what we have now.

Granted, there are going to be subjective elements to the analytic process. But anyone who argues in favor of a place being 'sensitive' is also arguing to take on the responsibility for the people who occupy it, regardless of how temporary that might be. This should restrain all but the most jaded of legislatures.

Balance.

curtisfong
06-16-2011, 11:06 AM
This is an offshoot of the most simple rule I use in my life: "Responsibility must come with authority. Authority must take responsibility. If ever you are offered responsibility without authority, turn it down. If ever you are given authority without responsibility, be exceptionally fearful."


Excellent rule!

However, the second part only applies if you are a good person. If you are an amoral sociopath (like most ambitious corporate drones), it would be amended to "If ever you are given authority without responsibility, be exceptionally grateful".

A more balanced, generalized approach might be

"If ever you see somebody else given authority without responsibility, be exceptionally fearful"

Or maybe the shorter version:

"Never give anybody authority without responsibility"

CSDGuy
06-16-2011, 11:41 AM
Actually, I was being serious. The response should match the threat. Despite the various stories about school massacres over the years, elementary schools are generally safe places. Doors are locked to the outside, except for entrances controlled and monitored by central staff. That should be enough to claim that some level of protection exists. Not every schools needs to be guarded against an invasion...though maybe some would. My high school was pretty bad and had drive-by's before they were fashionable to rap about. Also, the kids would not have access to arms, anyway.

Colleges are a different animal. Real crime against persons occurs with regularity. It'd be tough to argue that the entire campus was a sensitive place if the school was held responsible for negligence in not patrolling the remote parking lot at late night when a coed is raped. Taking her defense weapon means they take some of her responsibility for preservation, as well.

This is why I think this model works better than trying to create a system of rules based on known places. We would constantly be comparing one place against another, looking for some kind of amalgam. At the same time, the initial rules would have to come from somewhere. The legislature? That is what we have now.

Granted, there are going to be subjective elements to the analytic process. But anyone who argues in favor of a place being 'sensitive' is also arguing to take on the responsibility for the people who occupy it, regardless of how temporary that might be. This should restrain all but the most jaded of legislatures.

Balance.
I can see school grounds themselves being considered a "sensitive place" however, once you leave the grounds of the school, how is the school going to secure the area if there is no effective way to really secure the area? I mean, really, put checkpoints on all walkways and roads 1,000 feet from each and every school?

As to the "college" situation, remedy is easy. Simply write law that says that weapons exemptions (like a CCW) override (public) school policy for students and employees. The hard part would be ensuring that anyone that may legally own a handgun can get a CCW...

Patrick-2
06-16-2011, 11:52 AM
Excellent rule!

However, the second part only applies if you are a good person. If you are an amoral sociopath (like most ambitious corporate drones), it would be amended to "If ever you are given authority without responsibility, be exceptionally grateful".

A more balanced, generalized approach might be

"If ever you see somebody else given authority without responsibility, be exceptionally fearful"

Or maybe the shorter version:

"Never give anybody authority without responsibility"

Maybe my experiences will not match those of others, but I have learned to be wary of those who bestow authority without responsibility. There is usually a reason behind it, most frequently you are put in charge of something that has already failed but you do not know it. The result: when it comes time to assign the responsibility for the failure you are the one holding the bag.

I have been setup for that a few times in my life, but we turned down the work each time. The guys who took it ended up paying dearly. One firm never quite recovered.

Librarian
06-16-2011, 1:23 PM
Actually, I was being serious. The response should match the threat. Despite the various stories about school massacres over the years, elementary schools are generally safe places. Doors are locked to the outside, except for entrances controlled and monitored by central staff.

Not that it changes your point, but I think you live where it snows.

In my experience, many California schools are set up more on an 'outdoor strip mall' model, where individual classrooms open onto a walkway/breezeway. Classrooms have doors; the rest of the place is open, possibly but not invariably with a narrow but not directly monitored access point to the grounds.

The high school up the street has such an open plan, with driveway-sized walkways between the buildings, and the classroom doors opening onto a quad or similar open area; the walkways CAN be closed off, but generally are closed only when school is closed.

sandman21
06-16-2011, 2:02 PM
Seems to me one of the issues is the "sensitive zone" issue.

The "Sensitive Zone" issue IMHO doesn't just substantially burden the right of self defense, it eliminates it.

As such, any area IMHO that is declared a "Sensitive Zone" must have a "compelling public interest" that it requires suspension in that zone of a person's fundamental right.

I haven't heard anyone put forth arguments for setting "criteria" for a sensitive zone. Perhaps this is where we could go.

So, here are Nicki criteria.

1. What in the "sensitive zone" is so "sensitive" that it requires suspension of a person's fundamental right of self defense when they are in the zone?

Is this zone a 24/7/365 zone or is it limited hours?

2. Is this zone marked so that someone with arms just can't walk into it inadvertently.

This zone needs to be kept to a minimum in size.

Does this zone include private property that the owners get to keep arms themselves? If so, why?

3. Does the zone have security to screen all those who enter the zone to ensure that arms are not brought in?

4. In the event that the security zone is breached by armed individuals, does the zone have a armed security force immediately available to deal with those armed intruders?

Does the fairgrounds ever have events with anything that causing injuries or deaths in society. Things like CAR SHOWS, Knives or swords, sporting goods like ski, sky diving etc. Maybe a equal protection angle?

Who was on the county board of supervisors when this whole case started?

Perhaps this could give a clue, especially if they went on to higher office and sponsored gun legislation.

Nicki

Nice.

I think we could simplify the whole situation considerably with one simple rule: "When exercising authority over of the right to self-defense, the government must accept responsibility for the outcome."

This is an offshoot of the most simple rule I use in my life: "Responsibility must come with authority. Authority must take responsibility. If ever you are offered responsibility without authority, turn it down. If ever you are given authority without responsibility, be exceptionally fearful."


I think this approach melds into existing jurisprudence quite well. We already know that the government and law enforcement are not 'responsible' for saving you. They can try, but don't have to. The Supreme Court made clear we are on our own, legally-speaking.

We also now know that we have a right to self-preservation.

Add the two together, and the Constitution basically says: "Suck it. You are responsible for your own personage, and here is the authority (2A) you can use to effect the outcome."


My Thesis: If the government wishes to take your authority (sensitive places), then they must also accept responsibility for the outcomes while your authority is abrogated.

…….
So simply put, sensitive places must come with security - and the government must work to ensure the safety of everyone in that location. And when they fail to do that?

Responsibility means they pay when they are negligent. Note that not every crime can be prevented, but they must never 'fail to respond' and they must be staffed to a level commensurate to prevent most threats from occurring. So a jail or criminal courthouse would require quite a few guards, but an elementary school not so much (maybe mindful teachers is enough).

Taken this way, the list of sensitive places would be much, much smaller. Frankly, I would imagine the government actively working to reduce the size, scope and location of 'sensitive places' just to avoid the responsibility. Especially municipal governments: by declaring a place 'sensitive' they would be obligated not only to protect it, but to also indemnify it. Ouch.

Simple. Clean. Balanced.


For everyone’s consideration, working on reading the thread but if “sensitive zones” are established, it would appear that the state then has a duty to protect people. Thanks choprzrul for posting this up. DeShaney v. Winnebago County (http://www.calguns.net/calgunforum/showthread.php?t=445538)

It would appear to me that any LE agency that denies a CCW is accepting responsibility and liability for that person's safety:



We know that the police are under no obligation to protect us per the above SCOTUS decision(the part in Red above). However, the supremes left open (rather concisely) those conditions whereby the police ARE liable for our protection(bold & underlined above).

(a) A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Pp. 194-197.(b) There is no merit to petitioner's contention that the State's knowledge of his danger and expressions of willingness to protect him against that danger established a "special relationship" giving rise to an affirmative constitutional duty to protect. While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process [p190] Clause, to provide adequate protection, see Estelle v. Gamble, 429 U.S. 97"]429 U.S. 97; 429 U.S. 97; Youngberg v. Romeo, 457 U.S. 307, the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.

Now, if I apply to my local CLEO and my county sheriff for a CCW permit, and am subsequently denied a permit, under this decision, would those law enforcement agencies become instantly responsible for my personal security via this clause: "...from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."? Heller & McDonald established that Keep, Bear, and Self-Defense as fundamental, individual, civil rights, i.e. Liberties. A CCW denial is a Liberty denial.

It looks to me like law enforcement agencies are opening themselves up to giant amounts of personal injury liability each time they deny a CCW. I could see a cottage industry developing for personal injury attorneys who pursue these types of cases. Imagine how many people would apply for a CCW just on the outside chance they got hurt down the line and could sue for damages in the millions.

wash
06-16-2011, 2:13 PM
All public schools I can remember are entirely fenced around the perimeter (k-12).

The private schools I am familiar with were similarly fenced or walled off.

While I think the fences at public schools are more to keep students in and at private schools they are more to keep people out, they could easily be secured with a handful of guards (per thousand students).

Since students are generally prohibited from owning firearms, I think it makes sense to make sure that none of them are armed at school.

chris12
06-16-2011, 4:00 PM
Since students are generally prohibited from owning firearms, I think it makes sense to make sure that none of them are armed at school.

What about students who turn 18 while still in high school? Or better yet the teachers and administrators?

Matthew Carberry
06-24-2011, 6:15 PM
I don't have a problem with private property owners restricting access. There's no right to go on someone else's property. Don't like their rules? Go where you're welcome. But that isn't my point.

Government is completely different as "we" own all of "their" property.

Therefore, logic alone dictates that a "sensitive place" cannot be anywhere a member of the public has a right to go in the normal course of business. If it was truly sensitive, only selected and screened people would be allowed access in the first place.

So, public areas of government offices, where you can just walk in to talk to a clerk, cannot be "sensitive" and ban carry, yet the "employee's only" portion behind the counter, where you cannot go as a normal part of doing business with that clerk, can be.

For a Post Office, for example, this means carry would have to be allowed up to the counter and in the public parking lots and box lobbys, but not in the "employee only" parking lot, the loading dock, or behind the locked "employee's only" doors, etc.

For a place to qualify as "sensitive" it rationally must be clearly marked as such and physically defended against intrusion by the non-permitted. So armed guards, metal detectors, locked doors, physical access control, that sort of thing.

The working areas of Federal law enforcement facilities? Sensitive, as they have locked doors you can't just walk past, military bases as well (access to most "open posts" is a privilege, not a right to anyone without a military ID). Battered women's shelters? Actual courtrooms if not the whole courthouse? All of the above currently have "sensitive" place security measures in use and/or adding them would be a minimal cost.

Even public schools typically are not really "open to the public" during class hours. Most, as noted, require visitors to enter through a couple monitored doors and get a pass to go anywhere but the office. That level of security, maybe with the addition of authorized armed security (of some kind) suffices to make them "sensitive" in a rationally supportable sense.

Anyway, "open to the public in the normal course of business" should mean, just like in federal parks, that a place is not "sensitive" and the given state's carry laws apply.

Mulay El Raisuli
06-25-2011, 6:19 AM
I don't have a problem with private property owners restricting access. There's no right to go on someone else's property. Don't like their rules? Go where you're welcome. But that isn't my point.

Government is completely different as "we" own all of "their" property.

Therefore, logic alone dictates that a "sensitive place" cannot be anywhere a member of the public has a right to go in the normal course of business. If it was truly sensitive, only selected and screened people would be allowed access in the first place.

So, public areas of government offices, where you can just walk in to talk to a clerk, cannot be "sensitive" and ban carry, yet the "employee's only" portion behind the counter, where you cannot go as a normal part of doing business with that clerk, can be.

For a Post Office, for example, this means carry would have to be allowed up to the counter and in the public parking lots and box lobbys, but not in the "employee only" parking lot, the loading dock, or behind the locked "employee's only" doors, etc.

For a place to qualify as "sensitive" it rationally must be clearly marked as such and physically defended against intrusion by the non-permitted. So armed guards, metal detectors, locked doors, physical access control, that sort of thing.

The working areas of Federal law enforcement facilities? Sensitive, as they have locked doors you can't just walk past, military bases as well (access to most "open posts" is a privilege, not a right to anyone without a military ID). Battered women's shelters? Actual courtrooms if not the whole courthouse? All of the above currently have "sensitive" place security measures in use and/or adding them would be a minimal cost.

Even public schools typically are not really "open to the public" during class hours. Most, as noted, require visitors to enter through a couple monitored doors and get a pass to go anywhere but the office. That level of security, maybe with the addition of authorized armed security (of some kind) suffices to make them "sensitive" in a rationally supportable sense.

Anyway, "open to the public in the normal course of business" should mean, just like in federal parks, that a place is not "sensitive" and the given state's carry laws apply.


This is a completely rational analysis. And should be the definition applied.

Lets hope it turns out that way.


The Raisuli

donw
06-25-2011, 6:30 AM
One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)

chesty puller, during the chosin resevior debacle of the korean war...

American_pride
07-06-2011, 9:28 PM
Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."

God bless the 101st airborne!

yellowfin
07-06-2011, 9:38 PM
I'm guessing the Ezell decision changes everything now.

hoffmang
07-06-2011, 9:40 PM
Alameda's reply is going to have a lot of new stuff to chew on. Wish them "luck."

-Gene

Purple K
09-01-2011, 3:40 AM
The County's 21-days was up two-weeks ago.....

HowardW56
09-01-2011, 8:28 AM
Alameda's reply is going to have a lot of new stuff to chew on. Wish them "luck."

-Gene


I wish them the same kind of luck I have in Vegas, all bad......

Wherryj
09-01-2011, 8:59 AM
I wonder if Alameda is sorry they started this fight.

I doubt it, but I'm pretty certain that most of the tax payers in Alameda Co are sorry that they started it.

HowardW56
09-01-2011, 9:18 AM
What is the current status?

Crom
09-01-2011, 10:01 AM
I think were waiting on Alameda to file their brief. The last filing on 8/4/2011 was Alameda filing supplemental authority document.

http://lh3.googleusercontent.com/-XEsVHN-zBwo/Tl-5XXtyBGI/AAAAAAABE6Q/OTjiZiVXIek//07-15763%252520Summary%252520-%252520Mozilla%252520Firefox%252520912011%25252095 510%252520AM.jpg