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hoffmang
11-30-2012, 9:12 PM
Thursday morning, the Ninth Circuit Court of Appeals issued an order (http://www.hoffmang.com/firearms/richards-v-prieto/Order-2012-11-29.pdf) in both Richards and Peruta stating the following:

At oral argument, the parties should be prepared to discuss the significance, if any, of the absence of the State of California in this appeal. See 28 U.S.C. §2403; Fed. R. Civ. P. 5.1 (http://www.law.cornell.edu/rules/frcp/rule_5.1).

Later that day, Alan Gura responded with this 28j Letter (http://www.hoffmang.com/firearms/richards-v-prieto/28j-ltr-2012-11-29.pdf) (attachment 1 (http://www.hoffmang.com/firearms/richards-v-prieto/28j-ltr-Exhibit-1.pdf), 2 (http://www.hoffmang.com/firearms/richards-v-prieto/28j-ltr-Exhibit-2.pdf) and 3 (http://www.hoffmang.com/firearms/richards-v-prieto/28j-ltr-Exhibit-3.pdf).)

Some of you have heard some of us remind that one should not lightly take on the task of challenging laws under the Second Amendment. This development tends to be evidence of why we say that.

-Gene

wildhawker
11-30-2012, 9:14 PM
:gura:

Gray Peterson
11-30-2012, 9:18 PM
1ytCEuuW2_A

wildhawker
11-30-2012, 9:24 PM
Perhaps one might consider, as a plaintiff seeking to litigate a substantial and critical constitutional law case, that their attorney should, you know, know the law.

"Mr. Neuharth has the highest rate of set asides on Drivers' License suspensions according to DMV statistics, published pursuant to the Freedom of Information Act." (http://paulneuharth.com)

Fascinating statistic. However, California has no "Freedom of Information Act." It does, however, have a Public Records Act (Cal. Govt. Code section 6250, et seq.).

Something I would think a lawyer bringing such a substantial and critical constitutional law case might not overlook. Or a well-researched plaintiff, for that matter.

-Brandon

RMP91
11-30-2012, 9:31 PM
Seriously, what's with these DPs?!

RMP91
11-30-2012, 9:31 PM
GP using the losing horn sound from The Price is Right game show has me concerned, and I'm not fluent in Legalese so forgive me if the question I am about to ask is dumb...

Are we losing?

AlexDD
11-30-2012, 9:47 PM
GP using the losing horn sound from The Price is Right game show has me concerned, and I'm not fluent in Legalese so forgive me if the question I am about to ask is dumb...

Are we losing?

I am no attorney nor did I sleep in a holiday inn, but it appears in one case, Richards, provided the proper required notification, and the other case, peruta, did not.

A comparison is being made of the handling of the two cases.

BMartin1776
11-30-2012, 9:51 PM
does any of it matter when the demoncrats now hold a supermajority. Just a matter of time till they outlaw the thought of owning a gun

CaliforniaLiberal
11-30-2012, 9:56 PM
Is this like the 9th Circuit asking Alan Gura if he's turned in his homework yet and Alan telling the 9th Circuit he turned it in two weeks ago, the day after he got the assignment?

But that San Diego guy running Peruta has a bad dog who likes to eat homework....

Is it like that?

CitaDeL
11-30-2012, 9:56 PM
does any of it matter when the demoncrats now hold a supermajority. Just a matter of time till they outlaw the thought of owning a gun

uh wut?

The judiciary is a whole different ball of wax.

jdberger
11-30-2012, 9:59 PM
Is this like the 9th Circuit asking Alan Gura if he's turned in his homework yet and Alan telling the 9th Circuit he turned it in two weeks ago, the day after he got the assignment?

But that San Diego guy running Peruta has a bad dog who likes to eat homework....

Is it like that?

Pretty much.

moleculo
11-30-2012, 10:02 PM
I am no attorney nor did I sleep in a holiday inn, but it appears in one case, Richards, provided the proper required notification, and the other case, Richards, did not.

A comparison is being made of the handling of the two cases.

Correction to your post: Richards provided the proper notification to the State; Peruta, it appears, did not.

Purple K
11-30-2012, 10:09 PM
286 words of Gura in your face :eek:

anthonyca
11-30-2012, 10:10 PM
does any of it matter when the demoncrats now hold a supermajority. Just a matter of time till they outlaw the thought of owning a gun

I am no lawyer or history scholar but I did notice a similarity in some cases that are among the most important in our republic. Heller, McDonald, Sykes and some others (MD carry case) second amendment cases were against who? Chicago and DC.

In this war, California is the western front. DC, New Jersey, Massachusetts and New York are the eastern front. Chicago is the enemy behind the gates. Wars are won or lost on the front lines, not by claiming battle fatigue and resting in the rear.

The second amendment will be defined in court because of an anti state and that is MUCH harder to reverse than a currently friendly legislature in a free state.

Please join the cause and donate.

Ryan_D
11-30-2012, 10:17 PM
I am adept enough to sort of understand what the documents are saying, but not quite clear as to their impact. Can a brief explanation be provided?

nicki
11-30-2012, 10:22 PM
It is interesting that the state isn't involved in these cases, especially since there has been a change of Attorney Generals and Kamilla Harris is not exactly our friend.

Perhaps Kamilla Harris herself has problems with the equal rights issues under the cases and doesn't want to try to defend undefendable positions.

Perhaps she may realize that it may be wise to avoid all gun related litigation until the courts settle the law on many issues.

Nicki

AlexDD
11-30-2012, 10:28 PM
Correction to your post: Richards provided the proper notification to the State; Peruta, it appears, did not.

Thank U. In my haste I repeated Richards

Tincon
11-30-2012, 10:35 PM
While it would have been better, in my opinion, to serve the notice, this is a relatively toothless rule. A party’s failure to file and serve a notice of a constitutional challenge to a state statute does not result in a forfeiture by any party of any constitutional claim that the party has timely asserted in the action. Fed. R. Civ. P. 5.1(d)

It might be possible that the court would sanction the responsible attorney under § 1927, however at this point in the appeal that seems pretty unlikely, especially considering the lower court also had an obligation to notify, and either failed to do so, or if it did then it is a somewhat moot issue. Worst case scenario here is remand back to the lower court to give the AG a chance to intervene. But considering that the the AG did receive notification in Richards and did not intervene, remand seems unlikely.

So I'm not sure the development is terribly important.

wildhawker
11-30-2012, 10:41 PM
Perhaps Kamilla Harris herself has problems with the equal rights issues under the cases and doesn't want to try to defend undefendable positions.

Such would be a certain departure from her years in San Francisco.

Perhaps she may realize that it may be wise to avoid all gun related litigation until the courts settle the law on many issues.

Nicki

I rather think that's not it at all.

-Brandon

hornswaggled
11-30-2012, 10:44 PM
Is this like the 9th Circuit asking Alan Gura if he's turned in his homework yet and Alan telling the 9th Circuit he turned it in two weeks ago, the day after he got the assignment?

But that San Diego guy running Peruta has a bad dog who likes to eat homework....

Is it like that?

That's as much as I can gather from it. Sort of like...

9th Circuit: "Yo, where's both your stuff?"
Richards plantiffs: "Yo, you got mines already. (Looking at Peruta plantiffs) Don't even axe me about him, I ain't even wit him."

hoffmang
11-30-2012, 10:54 PM
So I'm not sure the development is terribly important.

60 days can really matter at this level.

-Gene

CaliforniaLiberal
11-30-2012, 11:08 PM
While it would have been better, in my opinion, to serve the notice, this is a relatively toothless rule. A party’s failure to file and serve a notice of a constitutional challenge to a state statute does not result in a forfeiture by any party of any constitutional claim that the party has timely asserted in the action. Fed. R. Civ. P. 5.1(d)

It might be possible that the court would sanction the responsible attorney under § 1927, however at this point in the appeal that seems pretty unlikely, especially considering the lower court also had an obligation to notify, and either failed to do so, or if it did then it is a somewhat moot issue. Worst case scenario here is remand back to the lower court to give the AG a chance to intervene. But considering that the the AG did receive notification in Richards and did not intervene, remand seems unlikely.

So I'm not sure the development is terribly important.



Pull up a chair and be welcome to CalGuns Tincon!

Meplat
11-30-2012, 11:15 PM
uh wut?

The judiciary is a whole different ball of wax.

Not for long.

Meplat
11-30-2012, 11:28 PM
60 days can really matter at this level.

-Gene

Do you think this is a straw dog delaying tactic by the court. Looks like Lucy snatching that football again to me.

Gray Peterson
11-30-2012, 11:43 PM
Do you think this is a straw dog delaying tactic by the court. Looks like Lucy snatching that football again to me.

For Peruta, that's unfortunate they didn't follow the proper procedures. For Richards, they did.

IVC
12-01-2012, 12:49 AM
Looks like a dig at Peruta and light gloating related to infighting. Not taking sides, but the initial post is a bit dramatic for a procedural issue, resulting in quite a few confused readers (including myself initially).

The real question is whether there is any damage done. Since the cases are not consolidated, as per Gura's last paragraph, he is pleading that there be no delay in Richards. This looks like it should be a routine "all clear."

Gray Peterson
12-01-2012, 2:20 AM
Looks like a dig at Peruta and light gloating related to infighting. Not taking sides, but the initial post is a bit dramatic for a procedural issue, resulting in quite a few confused readers (including myself initially).

The real question is whether there is any damage done. Since the cases are not consolidated, as per Gura's last paragraph, he is pleading that there be no delay in Richards. This looks like it should be a routine "all clear."

Peruta copycatted Sykes, which was the original name of Richards v. Prieto before Sykes & the Sacramento defendants were dropped from the case due to Sacramento's change in policy. Mr. Peruta was the only plaintiff on the case between September of 2009 & March of 2010.

Original Peruta Complaint (http://www.calguns.net/calgunforum/attachment.php?attachmentid=182305&stc=1&d=1354357241)

The prayer for relief was for enjoining the enforcement of the good cause & good moral character statutes directly, both facially & as applied.

There's a statutory requirement with Section 1983 lawsuits that when you can challenge the constitutionality of a state law, or how a state law is interpreted, you are required to notify the state attorney general's office within 60 days. In the end, the responsibility of the notification lies with the plaintiff parties, not with the district court.

At no time, during the era when the case was under sole control of attorney Paul Neuharth, did they comply with that requirement. At all.

6 months after the complaint was filed, an amended complaint was filed and the case was taken over by Chuck Michel & Associates. Though it was narrowed to challenging the way the sheriff enforced "good cause", no notification was made to the state to let them know that the statute was in any way being challenged in any way.

Then Paul Clement got attached to the case when it went to the 9th Circuit Court of Appeals. No notification was made (though I think as soon as the 60 days expired after the amended complaint, the case was fatally wounded), and now a member of the 9th Circuit Panel is wondering why the State of California is not a party to the case.

Regardless of Judge Gonzalez proceeding as if notification is not required, the 9th Circuit will essentially vacate & remand back to the district court to have them start over freshly, with the proper notifications to allow the State of California (as represented by the Attorney General's Office) to be a governmental-intervening party. If they had done so as the then-Sykes/now-Richards parties did while then AG Brown was still in office, the AG at that time would not have intervened, and the window for having the mighty force of the State of California Attorney General's Office involved in their case would have been closed.

You can, however, believe that AG Kamala Harris would intervene if given opportunity.

Luckily, for the Richards plaintiffs, they complied with the 60 day notify requirement and because of that, have foreclosed any involvement by state of California and their are only facing the hired guns (lawyers) for the county of Yolo.

Unluckily, for the Peruta plaintiff lawyers (Neuharth, Michel/Associates, and Clement), because of their lack of compliance with the state AG notification requirement, even the 9th Circuit sends back the case to have it all redone from scratch, all the Section 1988 billable hours from after the notification requirement window the first time around (around October of 2009) until it's sent back down to district to redo it all again, are now unrecoverable. That includes Mr. Clement's $1000/hour fee for his involvement in the case.

Anywhere from tens of thousands to potentially hundreds of thousands of dollars in NRA-ILA/CRPAF money was just tossed down the drain that cannot be recovered from the San Diego Treasury in attorney fees. That money comes from your NRA memberships & donations to NRA-ILA, and also any donations you make to CRPAF as well.

Mr. Clement, rather than making merits arguments on 2A, will likely get tied into a knot in re the notification issue during his 20 minutes of argument.

That leaves Mr. Gura for Richards to argue the 2A merits, along with whoever is arguing for Chris Baker (Funtimes) & HDF in Baker v. Keoloha.

The point of the OP was not about "gloating" and "infighting". It's about pointing out actual examples of lack of competence with basic federal rules of civil procedure that must be complied with, that people who have no business filing federal lawsuits should not be doing vanguard civil litigation in this fashion.

Perhaps after oral argument, where we can see the results of the damage done by this bungled situation, NRA members should call up ILA, and CRPA members call up CRPA Foundation, and ask them why they are paying for massive mistakes such as this apparent horror show.

OleCuss
12-01-2012, 4:02 AM
Gray:

That explanation is greatly appreciated. Made things nice and clear.

And, unfortunately, IIRC this was the case which Chuck Michel had in mind when he told the legislature that if they banned UOC then it was pretty much a lock that the state would have to go shall issue.

If this case goes "poof" I will consider this to be a major disappointment.

I hope the lawyers can go back and find precedent which shows that the failure to file the notice should not kill their case. I don't know how bad the odds are.

Mulay El Raisuli
12-01-2012, 5:01 AM
<SNIP>
That leaves Mr. Gura for Richards to argue the 2A merits, along with whoever is arguing for Chris Baker (Funtimes) & HDF in Baker v. Keoloha.


Which is not a bad thing.


It is interesting that the state isn't involved in these cases, especially since there has been a change of Attorney Generals and Kamilla Harris is not exactly our friend.

Perhaps Kamilla Harris herself has problems with the equal rights issues under the cases and doesn't want to try to defend undefendable positions.

Perhaps she may realize that it may be wise to avoid all gun related litigation until the courts settle the law on many issues.

Nicki


Letting others fight your battles is a sure way to lose on an issue near & dear to your heart. She's not that dumb, is she?


The Raisuli

Ford8N
12-01-2012, 6:37 AM
Ok.....read the whole thread. Is this a bad thing? Not clear....

CitaDeL
12-01-2012, 6:58 AM
Ok.....read the whole thread. Is this a bad thing? Not clear....

Its bad from the perspective that someone doing it right was lumped with someone doing it wrong... and further delayed our chance of arriving at the next step in getting a resolution.

eville
12-01-2012, 7:10 AM
I'm no expert, but I think the general sense is this is somewhere between good and not bad. Likely Richards will move ahead of Sykes on the timeline because of this. The sooner we get a ruling and hopefully a circuit split, then we can proceed to SCOTUS and then finally secure carry throughout the land.
I think the general consensus among CGF is that Richards is the better case for this than Peruta since, Peruta is clearly a "copy" of Richards.

IVC
12-01-2012, 7:55 AM
...It's about pointing out actual examples of lack of competence with basic federal rules of civil procedure that must be complied with, that people who have no business filing federal lawsuits should not be doing vanguard civil litigation in this fashion.

Thanks for this valuable post that explains what happened and what the consequences are. It would be impossible to deduce all of this just from the latest filings without knowing the code of civil procedure. This post should be moved to the top to provide context for the thread.

hoffmang
12-01-2012, 10:18 AM
It's not clear that even AG Harris wants to defend this. The problem is that many and maybe even most sheriffs do administer the licensing procedure constitutionally. Those sheriffs are not without quite a bit of political clout in Sacramento. Further, both the pro gun and the anti gun sheriffs do not want to cede control to the state on this issue.

-Gene

wildhawker
12-01-2012, 10:33 AM
The sheriffs don't touch carry politically because it splits their caucus. Carry's an effective no-touch subject for CSSA; to wit, we're still running on the old PC numbering for the official DOJ carry license application over a year after the changeover (whereas the DOJ forms have been out for a long time now). DOJ wanted to clean it up, and CSSA wanted to talk budget.

Whatever forces are at work, it's not CSSA.

-Brandon

Meplat
12-01-2012, 8:42 PM
OK; I think I understand what happened, but it seems that we have only speculation as to what happens next. I think the confusion regarding this development amongst the CGN rank and file is due to the fact that most of us don’t know enough about legal procedure to ask the right questions; and those who do know enough already know the answers.

Questions:

Can the ninth circuit still combine Peruta and Prieto if it wants? We have had much speculation about what they should do, and what they probably will do; much of it sounding to me like whistling in the grave yard. What I would like to know is; what is the worst they can do.

Can the AG still get involved in Prieto as a defendant if it is combined with Peruta?

If it is not combined and they remand Peruta can the court direct the plaintiff in Peruta to clean up its case and do its notifications, and then, if the AG gets involved, say they must wait for the outcome in Peruta before they rule in Prieto?

If they can and do combine the cases, can Prieto be remanded back in conjunction with Peruta, even though Gura did everything correctly?

Please; not what should happen or might happen, but what is the worst case scenario?

I don’t think the 9th gives a fig about doing the right thing. They don’t want to find for us and they know we want them to find against us. So what is their most productive tactic? Delay us!

The pertinent judges of the 9th knew what happened. Why did Gura have to splain it to them again? Why the **** grenade one week before orals? I smell a rat!

BrokerB
12-01-2012, 9:58 PM
Why did nra/crpa choose this way? Personal ?

Funtimes
12-01-2012, 11:00 PM
OK; I think I understand what happened, but it seems that we have only speculation as to what happens next. I think the confusion regarding this development amongst the CGN rank and file is due to the fact that most of us don’t know enough about legal procedure to ask the right questions; and those who do know enough already know the answers.

Questions:

Can the ninth circuit still combine Peruta and Prieto if it wants? We have had much speculation about what they should do, and what they probably will do; much of it sounding to me like whistling in the grave yard. What I would like to know is; what is the worst they can do.

Can the AG still get involved in Prieto as a defendant if it is combined with Peruta?

If it is not combined and they remand Peruta can the court direct the plaintiff in Peruta to clean up its case and do its notifications, and then, if the AG gets involved, say they must wait for the outcome in Peruta before they rule in Prieto?

If they can and do combine the cases, can Prieto be remanded back in conjunction with Peruta, even though Gura did everything correctly?

Please; not what should happen or might happen, but what is the worst case scenario?

I don’t think the 9th gives a fig about doing the right thing. They don’t want to find for us and they know we want them to find against us. So what is their most productive tactic? Delay us!

The pertinent judges of the 9th knew what happened. Why did Gura have to splain it to them again? Why the **** grenade one week before orals? I smell a rat!

That they get combined would probably not be a snow balls's chance. Our case is going to be heard, no matter what happens to Peruta; the same thing probably also applies to Richards, especially since they followed the rules for notification.

Baja Daze
12-02-2012, 1:16 AM
Gray, thanks for the outstanding synopsis/explanation. However, should we even care about Peruta since this case is a copycat of Richards (Sykes) and the Richards case has Gura as "our ace on the mound" pitching for our rights? So...does Peruta bring anything to the table that we need, that is not in Richards?

Peruta copycatted Sykes, which was the original name of Richards v. Prieto before Sykes & the Sacramento defendants were dropped from the case due to Sacramento's change in policy. Mr. Peruta was the only plaintiff on the case between September of 2009 & March of 2010.

Original Peruta Complaint (http://www.calguns.net/calgunforum/attachment.php?attachmentid=182305&stc=1&d=1354357241)

The prayer for relief was for enjoining the enforcement of the good cause & good moral character statutes directly, both facially & as applied.

There's a statutory requirement with Section 1983 lawsuits that when you can challenge the constitutionality of a state law, or how a state law is interpreted, you are required to notify the state attorney general's office within 60 days. In the end, the responsibility of the notification lies with the plaintiff parties, not with the district court.

At no time, during the era when the case was under sole control of attorney Paul Neuharth, did they comply with that requirement. At all.

6 months after the complaint was filed, an amended complaint was filed and the case was taken over by Chuck Michel & Associates. Though it was narrowed to challenging the way the sheriff enforced "good cause", no notification was made to the state to let them know that the statute was in any way being challenged in any way.

Then Paul Clement got attached to the case when it went to the 9th Circuit Court of Appeals. No notification was made (though I think as soon as the 60 days expired after the amended complaint, the case was fatally wounded), and now a member of the 9th Circuit Panel is wondering why the State of California is not a party to the case.

Regardless of Judge Gonzalez proceeding as if notification is not required, the 9th Circuit will essentially vacate & remand back to the district court to have them start over freshly, with the proper notifications to allow the State of California (as represented by the Attorney General's Office) to be a governmental-intervening party. If they had done so as the then-Sykes/now-Richards parties did while then AG Brown was still in office, the AG at that time would not have intervened, and the window for having the mighty force of the State of California Attorney General's Office involved in their case would have been closed.

You can, however, believe that AG Kamala Harris would intervene if given opportunity.

Luckily, for the Richards plaintiffs, they complied with the 60 day notify requirement and because of that, have foreclosed any involvement by state of California and their are only facing the hired guns (lawyers) for the county of Yolo.

Unluckily, for the Peruta plaintiff lawyers (Neuharth, Michel/Associates, and Clement), because of their lack of compliance with the state AG notification requirement, even the 9th Circuit sends back the case to have it all redone from scratch, all the Section 1988 billable hours from after the notification requirement window the first time around (around October of 2009) until it's sent back down to district to redo it all again, are now unrecoverable. That includes Mr. Clement's $1000/hour fee for his involvement in the case.

Anywhere from tens of thousands to potentially hundreds of thousands of dollars in NRA-ILA/CRPAF money was just tossed down the drain that cannot be recovered from the San Diego Treasury in attorney fees. That money comes from your NRA memberships & donations to NRA-ILA, and also any donations you make to CRPAF as well.

Mr. Clement, rather than making merits arguments on 2A, will likely get tied into a knot in re the notification issue during his 20 minutes of argument.

That leaves Mr. Gura for Richards to argue the 2A merits, along with whoever is arguing for Chris Baker (Funtimes) & HDF in Baker v. Keoloha.

The point of the OP was not about "gloating" and "infighting". It's about pointing out actual examples of lack of competence with basic federal rules of civil procedure that must be complied with, that people who have no business filing federal lawsuits should not be doing vanguard civil litigation in this fashion.

Perhaps after oral argument, where we can see the results of the damage done by this bungled situation, NRA members should call up ILA, and CRPA members call up CRPA Foundation, and ask them why they are paying for massive mistakes such as this apparent horror show.

Gray Peterson
12-02-2012, 2:41 AM
Gray, thanks for the outstanding synopsis/explanation. However, should we even care about Peruta since this case is a copycat of Richards (Sykes) and the Richards case has Gura as "our ace on the mound" pitching for our rights? So...does Peruta bring anything to the table that we need, that is not in Richards?

It does not. Peruta was filed 4 months after Richards (Sykes) in district court. The only reason it went anywhere was because Judge Gonzalez refused to stay the case for Nordyke case in the 9th Circuit, unlike Judge Morrison in Richards.

The Peruta amended complaint is woefully under-inclusive, because it attacks only one aspect of the may issue nature of California (good cause only).

For example: If Peruta were resolved in favor of the plaintiff-appellants, it would not grant the relief that the Richards plaintiffs seek.

However, if the relief was granted to Richards to the extent asked for in the Second Amended Complaint & Plaintiff MSJ's, that would satisfy the Peruta prayer for relief as they asked for in the amended complaint and the Partial Motion for Summary Judgement they asked for.

Simply put:

If Richards wins, therefor Peruta would win because Richards wider win would have subsumed Peruta's.

Peruta wins their prayer, Richards would not be satisfied as they would only get partially what they wanted.

As an aside:

This whole thing started because one man decided that he wasn't going to wait for Sykes to get done. Because the Sykes federal lawsuit was a facial challenge to the prior restraint that was good cause & good moral character, a single federal judge can make a ruling against a state statute in that fashion, and the entire state law is enjoined beyond the named parties (see Brown v. Entertainment Software Association), to every sheriff who enforces the two may-issue provisions (GC/GMC).

Instead, he believed that his voice, along with his lawyer who had little federal litigation experience on constitutional rights, was needed to start doing water color panting on "Michelangelo's Sistine Chapel" painting that Alan Gura was creating that is our modern Second Amendment.

Richards ruling in district court heavily cited Peruta. Strong possibility that if Peruta was not there, the judge might have ruled our way. Hard to rule against a fellow judge on near the same law.

Peterson ruling in district court heavily cited Peruta.

Peruta was cited in denials to two test San Mateo County applicants who applied for self defense. Bad ruling came out on Friday, their denials came 4 days later on Monday.

Numerous district court rulings on carry cited Peruta as the first in a line of bad district court cases.

All because one man just had to file a lawsuit. He just had to, you see. He had no choice but to spend $300 on a filing fee in district court, you see, because he just had to file a lawsuit. He just had to! He was gonna fix California all by his lonesome!

FABIO GETS GOOSED!!!
12-02-2012, 8:11 AM
There's a statutory requirement with Section 1983 lawsuits that when you can challenge...how a state law is interpreted, you are required to notify the state attorney general's office....

Just curious, what is the statutory authority for this? (You appear to be making a distinction between "challenging the constitutionality of a state law" and "challenging how a state law is interpreted.")

In the end, the responsibility of the notification lies with the plaintiff parties, not with the district court.

Are you saying the district court has no responsibility here?

Tincon
12-02-2012, 8:22 AM
though I think as soon as the 60 days expired after the amended complaint, the case was fatally wounded

Can you explain the basis for this supposition?

FABIO GETS GOOSED!!!
12-02-2012, 8:43 AM
Can you explain the basis for this supposition?

I wasn't going to nitpick this, but it's the AG who has 60 days to intervene after receiving notice. A party who files a document calling into question the constitutionality of a state statute must file and serve the requisite notice "promptly." But it really isn't about whether Peruta's attorneys "know the law" on the timing and filing of these notices.

IVC
12-02-2012, 8:43 AM
FGG is back in action after having been banned. This is bound to get interesting. And educational.

FABIO GETS GOOSED!!!
12-02-2012, 8:55 AM
FGG is back in action after having been banned. This is bound to get interesting. And educational.

The OP and others know exactly why the notice was not served and filed. You have to wonder why the issue is being presented the way it is in this thread.

Tincon
12-02-2012, 9:01 AM
I wasn't going to nitpick this, but it's the AG who has 60 days to intervene after receiving notice. A party who files a document calling into question the constitutionality of a state statute must file and serve the requisite notice "promptly." But it really isn't about whether Peruta's attorneys "know the law" on the timing and filing of these notices.

It's also interesting that the Sykes notice appears to be deficient in that it fails to provide an identification of the paper in which the constitutional challenge is raised. A minor technicality with little import perhaps, but that would be an accurate description of this entire issue.

Window_Seat
12-02-2012, 9:27 AM
Peruta copycatted Sykes, which was the original name of Richards v. Prieto before Sykes & the Sacramento defendants were dropped from the case due to Sacramento's change in policy. Mr. Peruta was the only plaintiff on the case between September of 2009 & March of 2010.

Original Peruta Complaint (http://www.calguns.net/calgunforum/attachment.php?attachmentid=182305&stc=1&d=1354357241)

The prayer for relief was for enjoining the enforcement of the good cause & good moral character statutes directly, both facially & as applied.

There's a statutory requirement with Section 1983 lawsuits that when you can challenge the constitutionality of a state law, or how a state law is interpreted, you are required to notify the state attorney general's office within 60 days. In the end, the responsibility of the notification lies with the plaintiff parties, not with the district court.

At no time, during the era when the case was under sole control of attorney Paul Neuharth, did they comply with that requirement. At all.

6 months after the complaint was filed, an amended complaint was filed and the case was taken over by Chuck Michel & Associates. Though it was narrowed to challenging the way the sheriff enforced "good cause", no notification was made to the state to let them know that the statute was in any way being challenged in any way.

Then Paul Clement got attached to the case when it went to the 9th Circuit Court of Appeals. No notification was made (though I think as soon as the 60 days expired after the amended complaint, the case was fatally wounded), and now a member of the 9th Circuit Panel is wondering why the State of California is not a party to the case.

Regardless of Judge Gonzalez proceeding as if notification is not required, the 9th Circuit will essentially vacate & remand back to the district court to have them start over freshly, with the proper notifications to allow the State of California (as represented by the Attorney General's Office) to be a governmental-intervening party. If they had done so as the then-Sykes/now-Richards parties did while then AG Brown was still in office, the AG at that time would not have intervened, and the window for having the mighty force of the State of California Attorney General's Office involved in their case would have been closed.

You can, however, believe that AG Kamala Harris would intervene if given opportunity.

Luckily, for the Richards plaintiffs, they complied with the 60 day notify requirement and because of that, have foreclosed any involvement by state of California and their are only facing the hired guns (lawyers) for the county of Yolo.

Unluckily, for the Peruta plaintiff lawyers (Neuharth, Michel/Associates, and Clement), because of their lack of compliance with the state AG notification requirement, even the 9th Circuit sends back the case to have it all redone from scratch, all the Section 1988 billable hours from after the notification requirement window the first time around (around October of 2009) until it's sent back down to district to redo it all again, are now unrecoverable. That includes Mr. Clement's $1000/hour fee for his involvement in the case.

Anywhere from tens of thousands to potentially hundreds of thousands of dollars in NRA-ILA/CRPAF money was just tossed down the drain that cannot be recovered from the San Diego Treasury in attorney fees. That money comes from your NRA memberships & donations to NRA-ILA, and also any donations you make to CRPAF as well.

Mr. Clement, rather than making merits arguments on 2A, will likely get tied into a knot in re the notification issue during his 20 minutes of argument.

That leaves Mr. Gura for Richards to argue the 2A merits, along with whoever is arguing for Chris Baker (Funtimes) & HDF in Baker v. Keoloha.

The point of the OP was not about "gloating" and "infighting". It's about pointing out actual examples of lack of competence with basic federal rules of civil procedure that must be complied with, that people who have no business filing federal lawsuits should not be doing vanguard civil litigation in this fashion.

Perhaps after oral argument, where we can see the results of the damage done by this bungled situation, NRA members should call up ILA, and CRPA members call up CRPA Foundation, and ask them why they are paying for massive mistakes such as this apparent horror show.

Gray, this explains the answer to an earlier question (on another thread) I had.

I'm still confused however, about whether CGF wanted or didn't want the 2 cases to be combined. Did they originally want Richards and Peruta combined, and are we glad that the two cases are not combined now because of the issue concerning Rule 5.1 (http://www.law.cornell.edu/rules/frcp/rule_5.1) and 28 U.S.C. §2403 (http://www.law.cornell.edu/uscode/text/28/2403)?

Erik.

Al Norris
12-02-2012, 9:32 AM
Richards: While Alan Gura did in fact submit the required notification, it was still incumbent upon the district court clerk to make the official notification and docket entry. This was not done. The clerk did not comply with 28 USC 2403.

Peruta: From what we can see, at this point, there was never an attempt by the initial attorney (complaint) nor the subsequent attorneys (amended complaint) to address this issues. Certainly the court clerk never attempted to comply with 2403.

The court has wide discretion on how it may apply 2403 (see FRCP 5.1), up to and including a remand (for both cases) back to district court to make the required notification(s).

The court may hold that the certification must be made. In which case, the State has 60 days to tell the court that it wants to be involved... or not.

In the meantime, orals will be held and we may learn more at that time.

One thing is certain. Should the court require an answer from the State, they "may reject the constitutional challenge [before the 60 days has elapsed], but may not enter a final judgment holding the statute unconstitutional." Rule 5.1(c).

Baker: Section 2403 does not come into play. The State was noticed (they were part of the initial complaint) as they were a defendant in the lawsuit. That the district court dismissed them (Younger), does not stop the case. The State of Hawaii actually noticed the appellate court that they were not going to challenge the appeal.

Jason_2111
12-02-2012, 9:33 AM
Gray, this explains the answer to an earlier question (on another thread) I had.

I'm still confused however, about whether CGF wanted or didn't want the 2 cases to be combined. Did they originally want Richards and Peruta combined, and are we glad that the two cases are not combined now because of the issue concerning Rule 5.1 (http://www.law.cornell.edu/rules/frcp/rule_5.1) and 28 U.S.C. §2403 (http://www.law.cornell.edu/uscode/text/28/2403)?

Erik.

I was wondering the same exact thing.

bulgron
12-02-2012, 9:44 AM
The OP and others know exactly why the notice was not served and filed. You have to wonder why the issue is being presented the way it is in this thread.

Don't be coy. What is your explanation for the failure to notify?

Maestro Pistolero
12-02-2012, 11:10 AM
Thanks Gray. It is somewhat reassuring, at least, that the net result is that Gura may get to drive the bus as a result of this. By the way,
doesn't the court itself also have a responsibility to notice the AG?

See this post from Esquappellate at Maryland Shooters: (http://www.mdshooters.com/showpost.php?p=1957991&postcount=1)Section 2403 provides in pertinent part:

(b) In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

Esquappellate elaborates here: (http://www.mdshooters.com/showpost.php?p=1961410&postcount=19) Rule 5.1 FRCP spells out the consequences. 5.1(d) says that the failure to file or for the court to certify "does not forfeit a constitutional claim or defense that is otherwise timely asserted." If the court holds that certification should have been provided, then the AG has 60 days to intervene and "the court may reject the constitutional challenge [before the 60 days has elapsed], but may not enter a final judgment holding the statute unconstitutional." Rule 5.1(c).

And yes, a remand is perfectly possible to remedy a failure to comply with 2403. It was ordered in Oklahoma ex rel Edmondson v. Pope, 516 F.3d 1214 C.A.10 (Okla.),2008 and in Pleasant-El v. Oil Recovery Co., Inc., 148 F.3d 1300 C.A.11 (Ala.),1998, for example. If there are potential fact issues, regarding the constitutionality of the statute, you can be sure that you'll get a remand. However, you could argue that a remand is not necessary, see, e.g., Puffer's Hardware, Inc. v. Donovan, 742 F.2d 12, C.A.1, August 20, 1984 ("where constitutional issue did not depend on any factual questions but was purely a question of law which could be addressed by the Court of Appeals, to which the statute was applicable and in which notification was given"), or that the suit does not draw into question the constitutionality of a state statute and can be fully adjudicated without a ruling on same.

Tough call. It seems clear to me at least that the court is signaling here that they think that the suit draws into question the constitutionality of the state statute. If so, then a notice will absolutely be required. So, one path could be to provide the notice anyhow and THEN argue that even though notice has now been given, the suit doesn't really require the court to rule on the constitutionality of the Cal. statute. If you can legitimately argue that it is a pure question of law that can be decided by the court of appeals, then the court can still reach the issue but must wait for 60 days for the AG to intervene if he wants to, unless, of course, they decide to rule against you, which they can do without waiting 60 days under Rule 5.1(c). The AG could assert a right to file briefs and participate in argument. They decline to do so at their peril.

There is another twist to this. Even if Gura in Richards filed the notice with the state (and Gura demonstrates that he plainly did so with his 28(j) filing), Rule 5.1(b) and Section 2403 expressly require the COURT to ALSO send the certification to the AG. While Gura's 28j letter states that the court of appeals should assume that the district court sent the certification, Gura does not cite to the docket for support. If the district court had done so, it *should* appear on the docket. If it doesn't, the court of appeals would be justified in concluding that the district court failed to do the certification. If the Clerk of the district court failed to do that, the Court of Appeals is arguably going to have to sit on this until such certification is provided, or perhaps, remand both Peruta and Richards back to district court to allow such certification to be made in district court. The court has discretion on what to do. Here is what the 8th Circuit has stated on this:

"When the parties and the court statutorily charged with notifying the Attorney General of a constitutional challenge to a federal statute fail to do so, the appellate court has discretion to respond in different ways, depending on the nature of the arguments and the progress of the litigation. See, e.g., In re Young, 82 F.3d 1407, 1412-13 (8th Cir.1996) (case was removed from the oral argument calendar and certified to the Attorney General); Merrill v. Town of Addison, 763 F.2d 80, 83 (2d Cir.1985) (state attorney general was notified after oral argument and intervened with a supplemental brief). It often may suffice to notify the Attorney General and allow him to intervene on appeal."

Oklahoma ex rel Edmondson, 516 F.3d at 1216. Of course, the 8th Circuit then ordered a remand because "A number of arguments were waived or abandoned by the parties either in district court or on appeal, including the appropriate standard of review, cf. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 345, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), the possibility of a saving construction, and the interests served by the statute." (Id.).

This mess reminds me of the old adage that "men must turn square corners when they deal with the government." Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188 (1920) (Holmes, J.)). Basically, you got to police the district court clerk as well. The notice is required, period, if the suits draw into question the constitutionality of the California statute.

Peruta copycatted Sykes, which was the original name of Richards v. Prieto before Sykes & the Sacramento defendants were dropped from the case due to Sacramento's change in policy. Mr. Peruta was the only plaintiff on the case between September of 2009 & March of 2010.

Original Peruta Complaint (http://www.calguns.net/calgunforum/attachment.php?attachmentid=182305&stc=1&d=1354357241)

The prayer for relief was for enjoining the enforcement of the good cause & good moral character statutes directly, both facially & as applied.

There's a statutory requirement with Section 1983 lawsuits that when you can challenge the constitutionality of a state law, or how a state law is interpreted, you are required to notify the state attorney general's office within 60 days. In the end, the responsibility of the notification lies with the plaintiff parties, not with the district court.

At no time, during the era when the case was under sole control of attorney Paul Neuharth, did they comply with that requirement. At all.

6 months after the complaint was filed, an amended complaint was filed and the case was taken over by Chuck Michel & Associates. Though it was narrowed to challenging the way the sheriff enforced "good cause", no notification was made to the state to let them know that the statute was in any way being challenged in any way.

Then Paul Clement got attached to the case when it went to the 9th Circuit Court of Appeals. No notification was made (though I think as soon as the 60 days expired after the amended complaint, the case was fatally wounded), and now a member of the 9th Circuit Panel is wondering why the State of California is not a party to the case.

Regardless of Judge Gonzalez proceeding as if notification is not required, the 9th Circuit will essentially vacate & remand back to the district court to have them start over freshly, with the proper notifications to allow the State of California (as represented by the Attorney General's Office) to be a governmental-intervening party. If they had done so as the then-Sykes/now-Richards parties did while then AG Brown was still in office, the AG at that time would not have intervened, and the window for having the mighty force of the State of California Attorney General's Office involved in their case would have been closed.

You can, however, believe that AG Kamala Harris would intervene if given opportunity.

Luckily, for the Richards plaintiffs, they complied with the 60 day notify requirement and because of that, have foreclosed any involvement by state of California and their are only facing the hired guns (lawyers) for the county of Yolo.

Unluckily, for the Peruta plaintiff lawyers (Neuharth, Michel/Associates, and Clement), because of their lack of compliance with the state AG notification requirement, even the 9th Circuit sends back the case to have it all redone from scratch, all the Section 1988 billable hours from after the notification requirement window the first time around (around October of 2009) until it's sent back down to district to redo it all again, are now unrecoverable. That includes Mr. Clement's $1000/hour fee for his involvement in the case.

Anywhere from tens of thousands to potentially hundreds of thousands of dollars in NRA-ILA/CRPAF money was just tossed down the drain that cannot be recovered from the San Diego Treasury in attorney fees. That money comes from your NRA memberships & donations to NRA-ILA, and also any donations you make to CRPAF as well.

Mr. Clement, rather than making merits arguments on 2A, will likely get tied into a knot in re the notification issue during his 20 minutes of argument.

That leaves Mr. Gura for Richards to argue the 2A merits, along with whoever is arguing for Chris Baker (Funtimes) & HDF in Baker v. Keoloha.

The point of the OP was not about "gloating" and "infighting". It's about pointing out actual examples of lack of competence with basic federal rules of civil procedure that must be complied with, that people who have no business filing federal lawsuits should not be doing vanguard civil litigation in this fashion.

Perhaps after oral argument, where we can see the results of the damage done by this bungled situation, NRA members should call up ILA, and CRPA members call up CRPA Foundation, and ask them why they are paying for massive mistakes such as this apparent horror show.

mag360
12-02-2012, 12:17 PM
Wow the Peruta case grinds my gears. This is exactly why we dont want people touching 2A cases who shouldnt be. At least gura gets to proceed uninhibited or less inhibited by a stupid case.

Al Norris
12-02-2012, 12:33 PM
Wow the Peruta case grinds my gears. This is exactly why we dont want people touching 2A cases who shouldnt be. At least gura gets to proceed uninhibited or less inhibited by a stupid case.

Not quite.

If the court has decided that there is a constitutional issue with the statute (and it is clear that the court is thinking this), they have several options open to them - for both cases.

While I believe that Gura has the better argument, this does not preclude the court from its options.

Gray Peterson
12-02-2012, 12:46 PM
The chances of Richards plaintiffs being remanded over Peruta's mistake is zero. The cases are not consolidated in any way. The only thing in held in tandem with them is that they are being argued on the same day in front of the same panel.

Purple K
12-02-2012, 1:00 PM
Richards: While Alan Gura did in fact submit the required notification, it was still incumbent upon the district court clerk to make the official notification and docket entry. This was not done. The clerk did not comply with 28 USC 2403.

Peruta: From what we can see, at this point, there was never an attempt by the initial attorney (complaint) nor the subsequent attorneys (amended complaint) to address this issues. Certainly the court clerk never attempted to comply with 2403.

The court has wide discretion on how it may apply 2403 (see FRCP 5.1), up to and including a remand (for both cases) back to district court to make the required notification(s).

The court may hold that the certification must be made. In which case, the State has 60 days to tell the court that it wants to be involved... or not.

In the meantime, orals will be held and we may learn more at that time.

One thing is certain. Should the court require an answer from the State, they "may reject the constitutional challenge [before the 60 days has elapsed], but may not enter a final judgment holding the statute unconstitutional." Rule 5.1(c).

Baker: Section 2403 does not come into play. The State was noticed (they were part of the initial complaint) as they were a defendant in the lawsuit. That the district court dismissed them (Younger), does not stop the case. The State of Hawaii actually noticed the appellate court that they were not going to challenge the appeal.

It may make me seem a conspiracy theorist, but one has to wonder if the Clerks blunder in Richards (Sykes) wasn't intentional. It's often stated in this forum and elsewhere that these cases are destined for a higher Court. This could give certain activist judges the opportunity to delay this case significantly in hopes that the composition of the SCOTUS changes.

Gray Peterson
12-02-2012, 1:07 PM
It may make me seem a conspiracy theorist, but one has to wonder if the Clerks blunder in Richards (Sykes) wasn't intentional. It's often stated in this forum and elsewhere that these cases are destined for a higher Court. This could give certain activist judges the opportunity to delay this case significantly in hopes that the composition of the SCOTUS changes.

esqappellate at MD Shooters doesn't think so. The fact is, Richards plaintiffs, not relying on the district court, not only emailed the person who is officially receives such process service, they also sent a certified letter to the CA AG.

To remand Richards for something that was not their particular fault (the district court itself not doing the notification), totally unheard of procedurally, something that a man of decades of appellate experience has dealt with (esqappellate) has never seen at all. I trust esqappellate on the matter.

Peruta, not so much.

hoffmang
12-02-2012, 1:13 PM
The OP and others know exactly why the notice was not served and filed. You have to wonder why the issue is being presented the way it is in this thread.

Actually, I have no idea as it seems to be a mistake your friend keeps making. Maybe he should stick to state court?

Care to explain why he didn't file a notice when he amended the complaint? Can we NRA members get our money back from his malpractice?

-Gene

Gray Peterson
12-02-2012, 1:16 PM
Just curious, what is the statutory authority for this? (You appear to be making a distinction between "challenging the constitutionality of a state law" and "challenging how a state law is interpreted.")

In the first instance of Peruta, which was a carbon-copy of Sykes, the constitutionality of the state law WAS facially challenged here. James Neuharth did not send a notice.

Are you saying the district court has no responsibility here?

They have a responsibility. However, the appellate court would probably treat Richards differently than Peruta because Richards counsel did their due diligence, Peruta's did not.

Gray Peterson
12-02-2012, 1:21 PM
I wasn't going to nitpick this, but it's the AG who has 60 days to intervene after receiving notice. A party who files a document calling into question the constitutionality of a state statute must file and serve the requisite notice "promptly."

No notice was filed, and that is kind of a nitpick.

But it really isn't about whether Peruta's attorneys "know the law" on the timing and filing of these notices.

Sure, it's about the case sucking from the get go, and causing losses in district courts nationwide, including in my case and also in Richards where the Peruta loss was heavily cited.

I had to deal up close with the damage done by the Peruta loss, and I can't be charitable to legal malpractices done from the get go at all.

Purple K
12-02-2012, 1:28 PM
The OP and others know exactly why the notice was not served and filed. You have to wonder why the issue is being presented the way it is in this thread.

So now you know what they knew! Do you also know when they knew it? Did you know it before they knew it? Damn you're good. Maybe you can use these psychic powers of yours to share with us the outcome of the case and save us the time and trouble of waiting.

Purple K
12-02-2012, 1:34 PM
No notice was filed, and that is kind of a nitpick.



Sure, it's about the case sucking from the get go, and causing losses in district courts nationwide, including in my case and also in Richards where the Peruta loss was heavily cited.

I had to deal up close with the damage done by the Peruta loss, and I can't be charitable to legal malpractices done from the get go at all.

If Peruta is sent back down, could that breathe new life into cases where Peruta was heavily cited. An appeal or notice of supplimental authority?

Meplat
12-02-2012, 1:47 PM
That they get combined would probably not be a snow balls's chance. Our case is going to be heard, no matter what happens to Peruta; the same thing probably also applies to Richards, especially since they followed the rules for notification.

Still speculating. Still whistling past a grave yard.

wildhawker
12-02-2012, 1:54 PM
Maybe he should stick to state court?

Bauer v. Harris argues against that, too. Perhaps he should stick to billing NRA and CRPAF for... writing copy for email blasts?

-Brandon

Meplat
12-02-2012, 2:09 PM
Not quite.

If the court has decided that there is a constitutional issue with the statute (and it is clear that the court is thinking this), they have several options open to them - for both cases.

While I believe that Gura has the better argument, this does not preclude the court from its options.

What are those options? Because they can be counted on to take the ones most troublesome to us.

Meplat
12-02-2012, 2:15 PM
It may make me seem a conspiracy theorist, but one has to wonder if the Clerks blunder in Richards (Sykes) wasn't intentional. It's often stated in this forum and elsewhere that these cases are destined for a higher Court. This could give certain activist judges the opportunity to delay this case significantly in hopes that the composition of the SCOTUS changes.

BINGO!!

Meplat
12-02-2012, 2:27 PM
The chances of Richards plaintiffs being remanded over Peruta's mistake is zero. The cases are not consolidated in any way. The only thing in held in tandem with them is that they are being argued on the same day in front of the same panel.

Still whistling Gray.

Meplat
12-02-2012, 2:32 PM
esqappellate at MD Shooters doesn't think so. The fact is, Richards plaintiffs, not relying on the district court, not only emailed the person who is officially receives such process service, they also sent a certified letter to the CA AG.

To remand Richards for something that was not their particular fault (the district court itself not doing the notification), totally unheard of procedurally, something that a man of decades of appellate experience has dealt with (esqappellate) has never seen at all. I trust esqappellate on the matter.

Peruta, not so much.

Has esqappellate ever had to deal with the 9th circus?

Meplat
12-02-2012, 2:36 PM
In the first instance of Peruta, which was a carbon-copy of Sykes, the constitutionality of the state law WAS facially challenged here. James Neuharth did not send a notice.



They have a responsibility. However, the appellate court would probably treat Richards differently than Peruta because Richards counsel did their due diligence, Peruta's did not.

Still whistling.

FABIO GETS GOOSED!!!
12-02-2012, 3:02 PM
Actually, I have no idea as it seems to be a mistake your friend keeps making. Maybe he should stick to state court?

All these attorneys including the former solicitor general and the SAF rookie of the year are so dumb and incompetent they didn't even know what notice they were supposed to serve and file! :laugh:

Care to explain why he didn't file a notice when he amended the complaint?

It couldn't possibly be that the first amended complaint is not within the terms of FRCP 5.1. lol.

Can we NRA members get our money back from his malpractice?

At the same time you can get your money back from your attorneys who didn't do anything about the district court's failing to certify?

OleCuss
12-02-2012, 3:08 PM
Kinda curious. . . I don't think this will work, but IIRC, Chuck Michels went and talked to the state legislature about the implications of pending legislation with regard to Peruta and how that would jeopardize state law. This means that the state was certainly aware of the litigation and at least some of its implications.

Could they argue that this was a sort of notice if there were an AG representative present at the meeting/hearing?

Note that I'm asking if it could be argued. I don't actually think it will work because of both timing issues and proper notification channels not being used.

FABIO GETS GOOSED!!!
12-02-2012, 3:10 PM
Sure, it's about the case sucking from the get go, and causing losses in district courts nationwide, including in my case and also in Richards where the Peruta loss was heavily cited.

So you no longer think the first amended compaint is "great news (http://www.calguns.net/calgunforum/showpost.php?p=4517231&postcount=1)"? :laugh:

FABIO GETS GOOSED!!!
12-02-2012, 3:13 PM
In the first instance of Peruta, which was a carbon-copy of Sykes, the constitutionality of the state law WAS facially challenged here. James Neuharth did not send a notice.

You didn't answer the question, which was very specific.

FABIO GETS GOOSED!!!
12-02-2012, 3:24 PM
Unluckily, for the Peruta plaintiff lawyers (Neuharth, Michel/Associates, and Clement), because of their lack of compliance with the state AG notification requirement, even the 9th Circuit sends back the case to have it all redone from scratch, all the Section 1988 billable hours from after the notification requirement window the first time around (around October of 2009) until it's sent back down to district to redo it all again, are now unrecoverable. That includes Mr. Clement's $1000/hour fee for his involvement in the case.

Anywhere from tens of thousands to potentially hundreds of thousands of dollars in NRA-ILA/CRPAF money was just tossed down the drain that cannot be recovered from the San Diego Treasury in attorney fees. That money comes from your NRA memberships & donations to NRA-ILA, and also any donations you make to CRPAF as well.

OMG the sky is falling!!!:laugh: How much you want to bet the 9th circuit isn't going to send either case back to district court because of 2403 or 5.1?

Meplat
12-02-2012, 4:01 PM
Kinda curious. . . I don't think this will work, but IIRC, Chuck Michels went and talked to the state legislature about the implications of pending legislation with regard to Peruta and how that would jeopardize state law. This means that the state was certainly aware of the litigation and at least some of its implications.

Could they argue that this was a sort of notice if there were an AG representative present at the meeting/hearing?

Note that I'm asking if it could be argued. I don't actually think it will work because of both timing issues and proper notification channels not being used.

This probably has no bearing on your question, but I would be shocked if the AG’s office was not aware of every jot & tittle within a day or two of the filing of all these cases. Hell, if their spies lurking around here don’t report it what good are they?

Window_Seat
12-02-2012, 4:31 PM
OMG the sky is falling!!!:laugh: How much you want to bet the 9th circuit isn't going to send either case back to district court because of 2403 or 5.1?

Maybe a wannabe law student question here, but why would they send back anything other than Peruta on that issue? What kind of an instruction would you expect otherwise if the Court addresses the issue in a Peruta opinion?

Not trying to pick a fight with you... But according to some of your questions to Gray, it seems you imply that the District Court had some responsibility to notify the state (since it would seem awkward to me for the District Judge to just sit there and watch the Plaintiff make these errors without doing something), and that is what I was thinking as well, so if that were the case, wouldn't it be predictable for the Ninth Circuit to remand Peruta with instructions based on that issue?

Under rule 62(b), don't District Judges take it upon themselves to issue stays of proceedings and judgements based on another big case on the horizon, or is rule 62(b) always something that one or both parties ask for (or am I comparing apples to oranges)?

Please 101 me on that (anyone, not just you).

Erik.

FABIO GETS GOOSED!!!
12-02-2012, 4:52 PM
Not trying to pick a fight with you... But according to some of your questions to Gray, it seems you imply that the District Court had some responsibility to notify the state (since it would seem awkward to me for the District Judge to just sit there and watch the Plaintiff make these errors without doing something), and that is what I was thinking as well, so if that were the case, wouldn't it be predictable for the Ninth Circuit to remand Peruta with instructions based on that issue?

Imply? You might want to bone up on 28 USC 2403 lol.

If you want some wannabe law student practice, why don't you speculate what the "instructions" might say if the 9th circuit remanded Peruta? What exactly would the 9th circuit be telling the district court to do? What would the 9th circuit do with the district court judgment?

By the way I realize I'm answering your question with a question.

taperxz
12-02-2012, 4:58 PM
The OP and others know exactly why the notice was not served and filed. You have to wonder why the issue is being presented the way it is in this thread.

Could you explain this to us. I would have no idea why after reading the context of the OP and what your views mean.

taperxz
12-02-2012, 5:00 PM
And yes i know you may not want to explain to us as its a waste of time. If you could though...

OleCuss
12-02-2012, 5:07 PM
Could you explain this to us. I would have no idea why after reading the context of the OP and what your views mean.

I think he may have touched on that one in post #70.

But as someone who is not at all legally sophisticated, I could be very wrong on that.

FABIO GETS GOOSED!!!
12-02-2012, 5:09 PM
I think he may have touched on that one in post #70.

Yes. The OP doesn't have any idea what I may be talking about though! :laugh:

FABIO GETS GOOSED!!!
12-02-2012, 5:10 PM
Could you explain this to us. I would have no idea why after reading the context of the OP and what your views mean.

Have a look at the prayer for relief of the first amended complaint, the MSJ briefs, and the appellant's opening brief for starters, and see if you can come up with a counter argument. Not trying to be a dick here, just trying to steer you in the right direction.

wolfwood
12-02-2012, 5:23 PM
OK; I think I understand what happened, but it seems that we have only speculation as to what happens next. I think the confusion regarding this development amongst the CGN rank and file is due to the fact that most of us don’t know enough about legal procedure to ask the right questions; and those who do know enough already know the answers.

Questions:

Can the ninth circuit still combine Peruta and Prieto if it wants? We have had much speculation about what they should do, and what they probably will do; much of it sounding to me like whistling in the grave yard. What I would like to know is; what is the worst they can do.

Can the AG still get involved in Prieto as a defendant if it is combined with Peruta?

If it is not combined and they remand Peruta can the court direct the plaintiff in Peruta to clean up its case and do its notifications, and then, if the AG gets involved, say they must wait for the outcome in Peruta before they rule in Prieto?

If they can and do combine the cases, can Prieto be remanded back in conjunction with Peruta, even though Gura did everything correctly?

Please; not what should happen or might happen, but what is the worst case scenario?

I don’t think the 9th gives a fig about doing the right thing. They don’t want to find for us and they know we want them to find against us. So what is their most productive tactic? Delay us!

The pertinent judges of the 9th knew what happened. Why did Gura have to splain it to them again? Why the **** grenade one week before orals? I smell a rat!

We just had judges assigned to the panel. So why would anyone be issuing orders before last week outside of the Clerk. And I am pretty sure telling us what do at our oral arguments goes beyond the scope of her duties. I am beginning to think that this is essentially a public admonishment more than anything else. Although it is going to eat into arguments for them.

Gray Peterson
12-02-2012, 5:37 PM
[/I]=Meplat;9836481]Has esqappellate ever had to deal with the 9th circus?

Yes:

http://www.mdshooters.com/showpost.php?p=1958041&postcount=125

I have been before Judge Thomas twice and won twice (once quite recently). He adhered to the letter of the law both times. He resisted the "feel good" result advocated by liberal groups and the state of California. He will play it straight. More than that, one cannot reasonably ask.

sharxbyte
12-02-2012, 5:38 PM
Peruta copycatted Sykes, which was the original name of Richards v. Prieto before Sykes & the Sacramento defendants were dropped from the case due to Sacramento's change in policy. Mr. Peruta was the only plaintiff on the case between September of 2009 & March of 2010.



Dot dot dot, Blah Blah Blah.



Thanks for the breakdown Gray!

Gray Peterson
12-02-2012, 5:44 PM
So you no longer think the first amended compaint is "great news (http://www.calguns.net/calgunforum/showpost.php?p=4517231&postcount=1)"? :laugh:

The amended complaint with the additional plaintiffs, including a former OB/GYN who happened to perform elective abortions, was a nice touch at that point, than solely a tarnished plaintiff.

It still doesn't change the fact that neither Neuharth nor Michel/Associates didn't file the notice.

I trust esqappellate on the matter because I know his qualifications, which corrected some of my own:

http://www.mdshooters.com/showpost.php?p=1961410&postcount=19

It would be fair to say that my stance has moderated on the issue hearing from esqappellate, who has a lot more experience with federal appellate procedure doing what he does than you do, or Michel for that matter.

Tincon
12-02-2012, 6:33 PM
Not trying to pick a fight with you... But according to some of your questions to Gray, it seems you imply that the District Court had some responsibility to notify the state (since it would seem awkward to me for the District Judge to just sit there and watch the Plaintiff make these errors without doing something), and that is what I was thinking as well, so if that were the case, wouldn't it be predictable for the Ninth Circuit to remand Peruta with instructions based on that issue?


No, that would be illogical and very unlikely. The 9th circuit has jurisdiction regardless of the failure to notify under rule 5.1. An appellate court may remand a case to the district court under rule 5.1 where notice was not given and where the parties defending that constitutionality of the statute have waived or abandoned various arguments in district court, including the appropriate standard of review, the possibility of a saving construction, and the interests served by the statute.

Absent some indication of harm or prejudice to the State's opportunity to fully present its views however, belated certification, while not ideal, is sufficient to honor the purpose of the federal statute.
Furthermore, there is general agreement that rule 5.1 should not be ignored, but, at least where the constitutionality of the statute has been upheld, there is no practical purpose to be served in remanding. Merrill v. Town of Addison, 763 F.2d 80 (2d Cir. 1985). This makes sense when you consider the purpose of the rule. If the constitutionality was upheld it makes for a very difficult argument that the government's position was not well represented. Since both Peruta and Richards are appealing a loss there is almost no chance at all of a remand, regardless of a failure by both plaintiffs and (apparently?) both district courts to notify/certify.

FABIO GETS GOOSED!!!
12-02-2012, 6:55 PM
I trust esqappellate on the matter because I know his qualifications, which corrected some of my own:

Are you sort of answering my question what authority is there that 5.1 notice must be given when "challenging how a state law is interpreted"? lol.

How about putting your money where your mouth is on the claims in your chicken little post? How much do you want to bet that there is no remand on 2403/5.1?

Gray Peterson
12-02-2012, 7:04 PM
Are you sort of answering my question what authority is there that 5.1 notice must be given when "challenging how a state law is interpreted"? lol.

How about putting your money where your mouth is on the claims in your chicken little post? How much do you want to bet that there is no remand on 2403/5.1?

I don't make bets with fake named people, "Fabio". When I made a bet in re a steak dinner for someone getting their license by January 1, 2014, we at least had the courtesy to exchanging real names for the bet. Something tells me that you won't do that.

Funtimes
12-02-2012, 7:09 PM
Still speculating. Still whistling past a grave yard.

How about this. I know one case will absolutely be heard, because we have nothing to do with this State notification issue lol.

OleCuss
12-02-2012, 7:35 PM
How about this. I know one case will absolutely be heard, because we have nothing to do with this State notification issue lol.

Not sure I understand this one.

I'm pretty sure that all three will be heard - the court was not canceling oral arguments, they were telling the litigants to be prepared to argue the issue of notification.

So I'm personally very certain that both Peruta and Richards will be heard - the disposition after the orals is what I have questions about.

But it could be that I'm misunderstanding - wouldn't be the first time.

FABIO GETS GOOSED!!!
12-02-2012, 7:35 PM
I don't make bets with fake named people, "Fabio". When I made a bet in re a steak dinner for someone getting their license by January 1, 2014, we at least had the courtesy to exchanging real names for the bet. Something tells me that you won't do that.

Ask a mod to hold the money, I'll send a money order. :laugh: Your "horror show" isn't going to play out I'm afraid lol.

wolfwood
12-02-2012, 7:45 PM
There will be impact to all three cases though as Paul Clement and Alan Gura will have to devote precious time to addressing this issue when it should have been spent on the substantive issues. I just wonder what Paul Clement is saying to the rest of the counsel on his team right now.

Tincon
12-02-2012, 7:49 PM
There will be impact to all three cases though as Paul Clement and Alan Gura will have to devote precious time to addressing this issue when it should have been spent on the substantive issues. I just wonder what Paul Clement is saying to the rest of the counsel on his team right now.

Is it your implication that oral arguments are usually (or ever) determinative in United States circuit courts, particularly when dealing with constitutional questions?

OleCuss
12-02-2012, 8:34 PM
Is it your implication that oral arguments are usually (or ever) determinative in United States circuit courts, particularly when dealing with constitutional questions?

You actually did make me chuckle a little.

I'm no expert on such stuff, but some time ago I came to the conclusion that orals at the circuit and SCOTUS levels are mostly window dressing. But they perpetuate the myth that the orals are very important and people are continually suckered.

wildhawker
12-02-2012, 8:41 PM
Is it your implication that oral arguments are usually (or ever) determinative in United States circuit courts, particularly when dealing with constitutional questions?

Is it your implication that oral arguments are usually not (or never) determinative in federal courts of appeals, particularly when dealing with constitutional questions?

-Brandon

Librarian
12-02-2012, 8:45 PM
You actually did make me chuckle a little.

I'm no expert on such stuff, but some time ago I came to the conclusion that orals at the circuit and SCOTUS levels are mostly window dressing. But they perpetuate the myth that the orals are very important and people are continually suckered.

We send postcards to the courts, thanking them for an occasion to meet each other.

OleCuss
12-02-2012, 8:50 PM
We send postcards to the courts, thanking them for an occasion to meet each other.

Excellent!!!

Tincon
12-02-2012, 8:58 PM
Is it your implication that oral arguments are usually not (or never) determinative in federal courts of appeals, particularly when dealing with constitutional questions?

-Brandon

Yes, of course. While the United States legal system is derived from that of the British commonwealth and its oral adversarial traditions, I think you will find almost universal agreement among practicing attorneys today that written briefs usually determine the outcome of cases in modern courts, particularly appellate courts considering constitutional questions.

wildhawker
12-02-2012, 9:02 PM
Yes, of course. While the United States legal system is derived from that of the British commonwealth and its oral adversarial traditions, I think you will find almost universal agreement among practicing attorneys today that written briefs usually determine the outcome of cases in modern courts, particularly appellate courts considering constitutional questions.

Usually is not never or always and almost universal is not unanimous. So it doesn't look like you disagree with wolfwood after all.

-Brandon

Tincon
12-02-2012, 9:22 PM
Usually is not never or always and almost universal is not unanimous. So it doesn't look like you disagree with wolfwood after all.

-Brandon

I believe you may be presenting a False Continuum. While there may surely be some exceptions to the rule here, it is absurd to ascribe them any great significance absent some evidence that oral arguments will carry an unusual weight in these cases.

As I said before, absent some tactical reason for not giving notice (as has been alleged to exist), it is my opinion that it should have been given. It is not however, a significant factor in either case.

Interestingly, the worst case scenario seems to have been achieved in the Richards case, where notice was given (possibly eliminating any theoretical tactical advantage), but the notice was materially deficient (possibly precluding compliance with rule 5.1).

OleCuss
12-02-2012, 9:33 PM
I believe you may be presenting a False Continuum. While there may surely be some exceptions to the rule here, it is absurd to ascribe them any great significance absent some evidence that oral arguments will carry an unusual weight in these cases.

As I said before, absent some tactical reason for not giving notice (as has been alleged to exist), it is my opinion that it should have been given. It is not however, a significant factor in either case.

Interestingly, the worst case scenario seems to have been achieved in the Richards case, where notice was given (possibly eliminating any theoretical tactical advantage), but the notice was materially deficient (possibly precluding compliance with rule 5.1).

This may be a dumb question, but did you mean "worse case" instead of the "worst case" you typed?

If it were "worst case" I'd imagine that you expect dire consequences for the deficiency but you indicated previously that you didn't think the issue would be significant in either case.

I suspect (and hope) it was just a typo.

mike_schwartz@mail.com
12-02-2012, 9:33 PM
If the Peruta case never should have happened in the first place, why are we mad that it is now out of the way Gene, Gray, and Brandon?

Without a compelling and specific answer to that question, this whole thing smacks of a smear campaign or some kind of personal vendetta.

wildhawker
12-02-2012, 9:37 PM
Perhaps, or perhaps I'm simply highlighting the deficiencies in your original inquiry.

-Brandon

I believe you may be presenting a False Continuum.

IVC
12-02-2012, 9:38 PM
Interestingly, the worst case scenario seems to have been achieved in the Richards case, where notice was given (possibly eliminating any theoretical tactical advantage), but the notice was materially deficient (possibly precluding compliance with rule 5.1).

Could you please clarify in what way it was deficient?

As I mentioned earlier, when FGG shows up, the battle of egos starts raging from all sides. While there is an undeniable entertainment value in it, the informative value tends to go down with all "oh, yeah, tell me this" and "are you saying that."

Most of us are just trying to figure out what the status is and whether there are any serious procedural issues that can lead to long delays. Anything else that we can learn about the process is a pure bonus.

FABIO GETS GOOSED!!!
12-02-2012, 9:38 PM
Usually is not never or always and almost universal is not unanimous. So it doesn't look like you disagree with wolfwood after all.


Well, you should at least get some credit for sounding logical! :laugh:

Tincon
12-02-2012, 9:41 PM
This may be a dumb question, but did you mean "worse case" instead of the "worst case" you typed?

If it were "worst case" I'd imagine that you expect dire consequences for the deficiency but you indicated previously that you didn't think the issue would be significant in either case.


I did mean worst case, but allow me to clarify the limits of my opinion. Given the ability to notify, or not to notify, and the belief in a tactical advantage in not notifying, with regard to effects of rule 5.1 one the case, the worst possible scenario would be to give notice, but to have it be deficient. You get the worst of both worlds, so to speak.

The effect of the "worst case scenario" however, given rule 5.1 and those facts, is unlikely to have any significant effect on the outcome of the case, for the reasons I already mentioned.

wildhawker
12-02-2012, 9:41 PM
If the Peruta case never should have happened in the first place, why are we mad that it is now out of the way Gene, Gray, and Brandon?

Without a compelling and specific answer to that question, this whole thing smacks of a smear campaign or some kind of personal vendetta.

1. We don't know if Peruta is "out of the way" or not.

2. If it were, who said I'd be "mad that is is?"

I'm sorry your plaintiff handed your organization's opportunistic [and perhaps too anxious] lawyers the case he did.

-Brandon

Tincon
12-02-2012, 9:46 PM
Could you please clarify in what way it was deficient?

As I mentioned earlier, when FGG shows up, the battle of egos starts raging from all sides. While there is an undeniable entertainment value in it, the informative value tends to go down with all "oh, yeah, tell me this" and "are you saying that."

Most of us are just trying to figure out what the status is and whether there are any serious procedural issues that can lead to long delays. Anything else that we can learn about the process is a pure bonus.

If you read rule 5.1 you will see exactly two requirements for notice (not including time and manner of delivery):

1. The notice must state the constitutional question raised and;

2. The notice must identify the paper that raises it.

If you carefully examine the notice linked to in the OP, as sent by certified mail, you will see that it fails to meet the second requirement.

As an aside, I'm not sure what all the chest thumping around here is about, it seems clear to me that we are all on the same side.

Gray Peterson
12-02-2012, 9:49 PM
Ask a mod to hold the money, I'll send a money order. :laugh: Your "horror show" isn't going to play out I'm afraid lol.

I'm not in the business of doing work for you, "Fabio". I don't do proxy bets with someone anonymous.

FABIO GETS GOOSED!!!
12-02-2012, 9:51 PM
I'm not in the business of doing work for you, "Fabio". I don't do proxy bets with someone anonymous.

It's ok, I wouldn't take the bet if I were you either. Please mind the forum rules by the way lol.

Gray Peterson
12-02-2012, 9:58 PM
It's ok, I wouldn't take the bet if I were you either. Please mind the forum rules by the way lol.

Which rule is that? You're the one who started asking for bets, and then you took the anon coward route.

mike_schwartz@mail.com
12-02-2012, 10:05 PM
Guys, this is all some personal agenda crap. This is some kind of smear campaign. The evidence is that the first 4 posts on this thread were from Gene, Brandon, and Gray, all three of them are hanging in there to do nothing more than trash a couple people (who you'd think would be considered all on the same progun team), they aren't giving all the facts, this Fabio guy has a whole different story...

I don't know what is going on here, but it is all someone's agenda. Don't let them make you part of their agenda. I only know what is on this thread, but I can smell the BS right through the computer screen. Disregard this entire thread and move on. We could use far fewer jr-wanna-be-lawyers and Hoffman sycophants and far more activists.

Back away from the calguns and go teach some people how to shoot and/or volunteer for a pro-gun politician or candidate. The rest of this is all a waste of time.

FABIO GETS GOOSED!!!
12-02-2012, 10:09 PM
Which rule is that? You're the one who started asking for bets, and then you took the anon coward route.

I need to be careful, last time I tried to defend myself against this kind of forum rule violation I got banned! :laugh: If you change your mind and want to put money on whether your dire predictions will come through, just say the word, pick your escrow agent, and I will send a money order ASAP. lol.

Hurstolds
12-02-2012, 10:17 PM
It's just going to be a never ending battle

solipsist
12-02-2012, 10:30 PM
Guys, this is all some personal agenda crap. This is some kind of smear campaign. The evidence is that the first 4 posts on this thread were from Gene, Brandon, and Gray, all three of them are hanging in there to do nothing more than trash a couple people (who you'd think would be considered all on the same progun team), they aren't giving all the facts, this Fabio guy has a whole different story...

I don't know what is going on here, but it is all someone's agenda. Don't let them make you part of their agenda. I only know what is on this thread, but I can smell the BS right through the computer screen. Disregard this entire thread and move on. We could use far fewer jr-wanna-be-lawyers and Hoffman sycophants and far more activists.

Back away from the calguns and go teach some people how to shoot and/or volunteer for a pro-gun politician or candidate. The rest of this is all a waste of time.

:rolleyes:

Spare us the conspiracy theories.

You say talking about the facts surrounding a case that is public record and asking questions about it is a smear campaign, and then proceed to talk trash.

You obviously need to follow your own advice...

mike_schwartz@mail.com
12-02-2012, 10:42 PM
is "solipsist" latin for brain surgeon?

clearly i am not disputing the facts of this. of course it actually happened.
i am dismissing the opinions and insults in the comments that followed. and suggesting time is better spent for our cause by bringing new people into the fold rather than sitting around reading internet gossip and getting caught up in the agendas of three men.

Librarian
12-02-2012, 10:57 PM
Which rule is that? You're the one who started asking for bets, and then you took the anon coward route.

That line of conversation is off topic for any thread outside of OT. Let us please restrain our Imps of the Perverse (http://en.wikipedia.org/wiki/The_Imp_of_the_Perverse).

IVC
12-02-2012, 11:06 PM
As an aside, I'm not sure what all the chest thumping around here is about, it seems clear to me that we are all on the same side.

You nailed it. This is exactly what most of us are trying to figure out. If you can shed some light, that'd be great.

freonr22
12-02-2012, 11:08 PM
That line of conversation is off topic for any thread outside of OT. Let us please restrain our Imps of the Perverse (http://en.wikipedia.org/wiki/The_Imp_of_the_Perverse).

Examples

The Imp of the Perverse is also exemplified in The Bad Glazier, a prose poem by Charles Baudelaire.
The concept also figures prominently in the motives of Jack Shaftoe, a swashbuckling protagonist in Neal Stephenson's trilogy The Baroque Cycle:
But here was a rare opportunity for stupidity even more flagrant and glorious.
Now, Bob, who'd been observing Jack carefully for many years, had observed that when these moments arrived, Jack was almost invariably possessed by something that Bob had heard about in Church called the Imp of the Perverse. Bob was convinced that the Imp of the Perverse rode invisibly on Jack's shoulder whispering bad ideas into his ear, and that the only counterbalance was Bob himself, standing alongsides counseling good sense, prudence, caution, and other Puritan virtues.
But Bob was in England.

Gray Peterson
12-02-2012, 11:35 PM
is "solipsist" latin for brain surgeon?

clearly i am not disputing the facts of this. of course it actually happened.
i am dismissing the opinions and insults in the comments that followed. and suggesting time is better spent for our cause by bringing new people into the fold rather than sitting around reading internet gossip and getting caught up in the agendas of three men.

The only agenda here is to show examples to the wider world of why duplicative, unnecessary, and unwarranted lawsuits by people who are not competent in strategic civil rights litigation, endangers all of our freedoms and liberties.

When it comes to litigation, NRA-ILA aligned persons such as Chuck Michel, Paul Clement, and Steven Halbrook has done a tremendous amount of professional discourtesy, and done terrible jobs at protecting 2A-related civil liberties.

From the beginning, NRA-ILA aligned civil litigators did everything possible to keep what was to become District of Columbia v. Heller (it was called Parker v. District of Columbia at the time), including filing sham litigation that was Seegars v. Ashcroft. That was Stephen Halbrook. They then later twice tried to get Congress to repeal the DC handgun ban, mooting the case. Only Virginia Tech stopped that train.

Fast forward a year. They (NRA-ILA) file unnecessarily duplicative litigation against the city of Chicago, using themselves as the lead plaintiffs, interfering at every step with McDonald v. City of Chicago

Paul Clement, in professional discourtesy, told the Supreme Court, in his position as former Solicitor General of the United States, now on behalf of the NRA, that Gura did not argue enough on substantive due process, which was provably false. The NRA's view did not gain them 5 votes in the Supreme Court, as Justice Thomas would not have joined a substantive due process ruling and we would have lost.

It is believed that certain personalities that control the NRA was afraid of the penumbras of civil liberties that a resurrected P&I clause in the 14th amendment would engender.

NRA ILA against the 18-21 year old bans on purchasing handguns from an FFL, and carry between 18-21, before even the carry issue was resolved. These cases should have never been pursued.

They get the rare wins, like Shawn Gowder in Chicago, which netted the NRA lawyers $125K. When NRA-ILA got a check from the City of Chicago for $1.3 million dollars, they got it because Gura made the argument that got the magic 5th Justice that was needed in McDonald (That would be Justice Thomas).

Benson v. City of Chicago, total handgun sales ban & 8 other things. Mr. Gura & Mr. Sigale were able to get the total range ban tossed and give strong precedent in the 7th Circuit. NRAILA's Bensen litigation is still in a quagmire down below.

ILA generally doesn't know how to litigate, because they are the institute for LEGISLATIVE action.

When you have a long history of litigation failures, it only informs what is going on with the Peruta litigation.

Also, litigation in re the state AB962 litigation. Yes we as gun owners won the preliminary injunction, but there was such sloppiness after the injunction that despite usually getting attorneys fees under the California fee recovery statute, Michel & Associates did NOT get their fees back, which means the money doesn't go back to the NRA-ILA & CRPAF.

Unfortunately, the NRA-ILA does stupid things for fundraising purposes, and continually rewards failure. It's no wonder they parachuted in Clement.

Gray Peterson
12-02-2012, 11:41 PM
That line of conversation is off topic for any thread outside of OT. Let us please restrain our Imps of the Perverse (http://en.wikipedia.org/wiki/The_Imp_of_the_Perverse).

Is there some sort of unofficial rule that I'm not aware of, that we're not supposed to question people's anonymity, especially when anonymous one asks for a bet?

wolfwood
12-02-2012, 11:56 PM
I believe you may be presenting a False Continuum. While there may surely be some exceptions to the rule here, it is absurd to ascribe them any great significance absent some evidence that oral arguments will carry an unusual weight in these cases.

As I said before, absent some tactical reason for not giving notice (as has been alleged to exist), it is my opinion that it should have been given. It is not however, a significant factor in either case.

Interestingly, the worst case scenario seems to have been achieved in the Richards case, where notice was given (possibly eliminating any theoretical tactical advantage), but the notice was materially deficient (possibly precluding compliance with rule 5.1).


Look all I know is this directly impacts my life. I was born and raised in San Diego but that's not really the point. My Uncles and cousins have been paying N.R.A. dues for most there lives. So I figure when you guys are taking money from my kin, your going to use it right. I'm sure you can argue about this all day. I will tell you this though. This stuff directly impacts my life. I had to drop several of my grappling clients so I could sit in front of a computer losing money largely in part because of this issue past few days. That's money out of my pocket. In ain't right that your taking money admittedly indirectly from my family, agree to do a job, then fail to do part of it. That wastes my time and more importantly that wastes Paul Clements time. Are you going to tell me you hired got Paul Clement up there talking for no reason? Why didn't you waive your oral argument like Mr. Bircht did then? Just retain Paul Clement and apply for cert if your only reason for grabbing hm is to help get a writ through if need be.Come on man. Maybe a regular guy isn't going to sway a court but a guy like Paul Clement. Damn right he can. Now instead of 20 minutes of some of the best oratory in the world being applied to con law he is going to spend half that time talking about some letter that should of been sent years ago. And don't tell me its some tactical deal. What happened is you guys amended you complaint and forgot the case originally was about striking down the law.


Look I am not trying to get into this fight between your groups. Other than Adam Richards who's my bro from college I've never broken bread with any of you. On the other hand, it ain't right for anyone to criticize Neuharth about this. This hasn't been his case for a long time now. I don't know the history as well as most of you guys but for all we know he would have eventually given the state notice. And it certainly ain't right to judge Mr. Peruta. He is not running the show. As for him filing a lawsuit. That is his right as a American. Every man has a right to file his grievances in a court of law. That goes all the way back to trial by combat. No matter how rich or poor has a right to try his hand. At least he is out there trying and my understanding is he was even originally doing the work. He forced a case to the Ninth Circuit that may win. If the 2nd Circuit logic is used then Richards will lose. Peruta may still win. Neumath did that because he had the guts to get out there are fight. He forced the point and made the N.R.A. get involved. The rest is on them.

Look if I am misinterpreting that logo and you just posting on the internet I am sorry. Sounds like everyone involved has made mistakes. Point is you should own up to them instead of trying to use some fancy talk to spin it. I am not working in any national firm and I am sure you could run circles around me in a debate. But come on don't blow smoke.

Librarian
12-02-2012, 11:56 PM
Is there some sort of unofficial rule that I'm not aware of, that we're not supposed to question people's anonymity, especially when anonymous one asks for a bet?

There was an earlier event, to which Fabio alluded, resulting in a group of short bans for discussing any member's choice to maintain a 'handle' rather than overt identity. (Can't find the thread quickly - it was here in 2A.)

Either a member's contributions stand on their own, or they do not; such evaluation is a privilege of each reader.

There was also, IIRC, a short discussion of not being 'an occasion of sin' ...

Maestro Pistolero
12-02-2012, 11:59 PM
I have observed it come up on a few occasions, and the law was laid down by Librarian that those who wish to comment anonymously here can do so without being badgered over said anonymity. They may be badgered on other subjects, however, as long as other rules of engagement are observed.

I don't know about a forum rule, but I wager there may be something in the law about online gambling.

ETA; Librarian beat me to it.

Gray Peterson
12-03-2012, 12:02 AM
There was an earlier event, to which Fabio alluded, resulting in a group of short bans for discussing any member's choice to maintain a 'handle' rather than overt identity. (Can't find the thread quickly - it was here in 2A.)

Either a member's contributions stand on their own, or they do not; such evaluation is a privilege of each reader.

There was also, IIRC, a short discussion of not being 'an occasion of sin' ...

So sayeth the moderator, so say we all.

Gray Peterson
12-03-2012, 12:08 AM
Look all I know is this directly impacts my life. I was born and raised in San Diego but that's not really the point. My Uncles and cousins have been paying N.R.A. dues for most there lives. So I figure when you guys are taking money from my kin, your going to use it right. Look brother I looked at your profile and sounds like your doing alright for yourself up there in Long
Beach. I'm sure you can argue about this all day. I will tell you this though. This stuff directly impacts my life. I had to drop several of my grappling clients so I could sit in front of a computer losing money largely in part because of this issue past few days. That's money out of my pocket. In ain't right that your taking money admittedly indirectly from my family, agree to do a job, then fail to do part of it. That wastes my time and more importantly that wastes Paul Clements time. Are you going to tell me you hired got Paul Clement up there talking for no reason? Why didn't you waive your oral argument like Mr. Bircht did then? Just retain Paul Clement and apply for cert if your only reason for grabbing hm is to help get a writ through if need be.Come on man. Maybe a regular guy isn't going to sway a court but a guy like Paul Clement. Damn right he can. Now instead of 20 minutes of some of the best oratory in the world being applied to con law he is going to spend half that time talking about some letter that should of been sent years ago. And don't tell me its some tactical deal. What happened is you guys amended you complaint and forgot the case originally was about striking down the law.

"You guys"? Clue all of us in here.

Look I am not trying to get into this fight between your groups. Other than Adam Richards who's my bro from college I've never broken bread with any of you. On the other hand, it ain't right for anyone to criticize Neuharth about this. This hasn't been his case for a long time now. I don't know the history as well as most of you guys but for all we know he would have eventually given the state notice. And it certainly ain't right to judge Mr. Peruta. He is not running the show. Look if I am misinterpreting that logo and you just posting on the internet I am sorry. Sounds like everyone involved has made mistakes. Point is you should own up to them instead of trying to use some fancy talk to spin it.

I disagree. Peruta was directly running the show for the first 4 or 5 months of the litigation, and refused to wait up for the Sykes litigation to finish up. He just had to file a lawsuit™.

Neuharth, not letting him off the hook, even though it appears he never did federal civil rights litigation ever in this particular context.

wolfwood
12-03-2012, 12:27 AM
I might be wrong but I am under the impression that the poster works for a firm that represents the N.R.A. Most my family who live in Indiana are N.R.A. members. So indirectly, my family is paying for this. So by you guys I mean the N.R.A. and their counsel. They are extremely intelligent attorneys with large resources and training. Those resources and training are in large part provided by the American people via donations. They should live up to that trust.

Gray Look I am not exactly in a position to criticize a San Diego based attorney for filing a 1983 lawsuit challenging a state's firearms regulations despite having no experience and I probably should not have started posting this stuff. Its just when I was growing up I'd go to Huntington Indiana every summer and spend it at my grandparents house. My uncle would take me shooting. Back then the N.R.A. was America's Superman making sure we could still run through the woods with our rifles. Its disappointing to see my vision from childhood dispelled.

If what was essentially a pro se litigant successfully litigated this issue for half a year and forced a suit which now gives California a second chance if the Court follows the 2nd Circuit and says prior restraint is not appropriate when there is not unbridled discretion good on him. I'll buy him a beer if I see him around town.

Funtimes
12-03-2012, 3:16 AM
Not sure I understand this one.

I'm pretty sure that all three will be heard - the court was not canceling oral arguments, they were telling the litigants to be prepared to argue the issue of notification.

So I'm personally very certain that both Peruta and Richards will be heard - the disposition after the orals is what I have questions about.

But it could be that I'm misunderstanding - wouldn't be the first time.

I'm just saaying if for some reason the court did buy the, "CA Doesn't know - the case must go!" stuff that has been speculated that there would still be a ruling, because the State opted out of the Hawaii case. Although in our a case, a split with 7th circuit for standing could ensue.

wildhawker
12-03-2012, 9:04 AM
Mike,

It's always been amusing to watch you be so vocal and yet so, so irrelevant...

How many LTCs has Sheriff Jay issued in San Diego County so far?

-Brandon

Guys, this is all some personal agenda crap. This is some kind of smear campaign. The evidence is that the first 4 posts on this thread were from Gene, Brandon, and Gray, all three of them are hanging in there to do nothing more than trash a couple people (who you'd think would be considered all on the same progun team), they aren't giving all the facts, this Fabio guy has a whole different story...

I don't know what is going on here, but it is all someone's agenda. Don't let them make you part of their agenda. I only know what is on this thread, but I can smell the BS right through the computer screen. Disregard this entire thread and move on. We could use far fewer jr-wanna-be-lawyers and Hoffman sycophants and far more activists.

Back away from the calguns and go teach some people how to shoot and/or volunteer for a pro-gun politician or candidate. The rest of this is all a waste of time.

Meplat
12-03-2012, 9:16 AM
How about this. I know one case will absolutely be heard, because we have nothing to do with this State notification issue lol.

Thank you!:)

Meplat
12-03-2012, 9:21 AM
Ask a mod to hold the money, I'll send a money order. :laugh: Your "horror show" isn't going to play out I'm afraid lol.

Careful Gray he could be a Nigerian!:eek:

Meplat
12-03-2012, 9:38 AM
Guys, this is all some personal agenda crap. This is some kind of smear campaign. The evidence is that the first 4 posts on this thread were from Gene, Brandon, and Gray, all three of them are hanging in there to do nothing more than trash a couple people (who you'd think would be considered all on the same progun team), they aren't giving all the facts, this Fabio guy has a whole different story...

I don't know what is going on here, but it is all someone's agenda. Don't let them make you part of their agenda. I only know what is on this thread, but I can smell the BS right through the computer screen. Disregard this entire thread and move on. We could use far fewer jr-wanna-be-lawyers and Hoffman sycophants and far more activists.

Back away from the calguns and go teach some people how to shoot and/or volunteer for a pro-gun politician or candidate. The rest of this is all a waste of time.

Nothing to see here; move along.

bulgron
12-03-2012, 9:46 AM
After reading through this thread, my confidence in our ability to win any of the carry cases is at an all-time low.

bwiese
12-03-2012, 9:58 AM
Mike,

It's always been amusing to watch you be so vocal and yet so, so irrelevant...

How many LTCs has Sheriff Jay issued in San Diego County so far?

-Brandon

Sheriff Jay, the guy that wanted to create constructive possession for AWs?

Hah.

Meplat
12-03-2012, 10:09 AM
"You guys"? Clue all of us in here.



I disagree. Peruta was directly running the show for the first 4 or 5 months of the litigation, and refused to wait up for the Sykes litigation to finish up. He just had to file a lawsuit™.

Neuharth, not letting him off the hook, even though it appears he never did federal civil rights litigation ever in this particular context.

When he says “You Guys” he means all who are bickering and quarling.

J.D.Allen
12-03-2012, 10:59 AM
I am not an attorney, and I certainly don't know anything about federal civil procedure rules.

That being said, AFAIK there is one man, and only one man who has successfully fought two major national 2A cases recently. Alan Gura. There haven't been many others that have had the kind of success that he has had in this arena that I am aware of. I think we all need to pay attention to that, and follow his pattern, that is if our goal is actually to win these cases and not just profit from them.

I was present at the PERUTA orals in San Diego in front of judge Gonzales, and then went to dinner with Ed Peruta and a group of other people who supported him. I supported them at the time, but this was a UOC group, and we all know how that effort turned out...

As an aside, IIRC there were also issues about Peruta not being the ideal plaintiff for this type of case either.

My point in saying all of this is that there are people who have shown that they know the right way to handle this issue, and if we are ultimately going to win, we need to sit back and let them take the lead. If they say a particular case shouldn't be filed, then it shouldn't be filed. If they say a particular argument shouldn't be made, then it shouldn't be made. Otherwise we are simply micturating in the wind, and being counterproductive to our own cause. It is obvious that some of us, while perhaps having the best intentions, have made things worse, not better.

wildhawker
12-03-2012, 12:24 PM
After reading through this thread, my confidence in our ability to win any of the carry cases is at an all-time low.

It's a good thing, then, that your confidence and actual outcomes are mutually exclusive.

-Brandon

Maestro Pistolero
12-03-2012, 12:45 PM
It's a good thing, then, that your confidence and actual outcomes are mutually exclusive.

-Brandon

Let's hope. But that remains to be seen. With the exception of Woolard (which is now on appeal) what are the actual good outcomes of carry cases to which you refer?

I am optimistic that we will prevail when cert is finally granted, because to believe otherwise would be to accept the unthinkable. But until then, and correct me if I am wrong, there are no positive outcomes yet on federal carry cases.

Kestryll
12-03-2012, 12:55 PM
Here's a thought, why don't we focus on the topic and leave the digs at each other and snide remarks at the door.

That way I don't have to delete a thread that has serious value and potential.

wazdat
12-03-2012, 2:45 PM
Here's a thought, why don't we focus on the topic and leave the digs at each other and snide remarks at the door.

That way I don't have to delete a thread that has serious value and potential.

Amen. I'm not alone in wishing for a laymen's explanation of what is happening and the possible outcomes.

The pissing contests get old after awhile.

OleCuss
12-03-2012, 3:25 PM
After reading the back and forth I'll try my explanation as someone who is a non-lawyer:

Some fairly to very legally sophisticated individuals believe there are problems with some of the paperwork which they believe (or don't believe) should have been filed for both Peruta and for Richards.

The paperwork was not filed in the case of Peruta but at least some legal experts don't think it needed to be.

Relevant paperwork was filed in the case of Richards but it is not clear to me that it was done right. The district court did not do what it should have done in regard to giving proper notice to the state - but that is not likely to affect the case.

So at this time the 9th Circuit has more or less told the lawyers for both Peruta and Richards to be prepared to address/argue whether or not notice of the lawsuits should have been properly served to the state, whether or not the notice was properly given (assuming it should have been given), and (assuming that proper notice was not given) whether this would require that the case be sent back to the district court to allow for proper notice and whatever other legal maneuvering must occur.

Some of the legally sophisticated think that neither Peruta nor Richards will be remanded and that both will have rulings from the 9th Circuit.

What does it mean for the cause of liberty? In the long-run not likely very much.

It does mean that there will be an issue which will be argued in court upon which there may not have been adequate written briefings - and that will be (I take it) relatively unusual.

But assuming the 9th Circuit does not remand to the District for further proceedings at the lower level - then this will have been much kerfuffle on our part over not much of anything.

Without the Remand I think one should expect the 9th Circuit to go ahead and rule against the cause of liberty sooner rather than later. But there is at least one judge on the hearing panel who is considered a really straight shooter even when he doesn't like the law - and that could help us a lot.

Whatever the outcome of the current proceedings at the 9th Circuit, I expect consideration to be given to asking for an en banc hearing and then an appeal to SCOTUS.

I hope our more legally sophisticated will fix the likely errors in the above.

wolfwood
12-03-2012, 3:27 PM
Amen. I'm not alone in wishing for a laymen's explanation of what is happening and the possible outcomes.

The pissing contests get old after awhile.

There is a rule that you have to file with the Court a form that goes to the State when you are trying to overturn a State law by suing a City or anything else that is not the State or part of the State government. The state has 60 days to decide whether it wants to become part of the lawsuit

The Peruta case originally was trying to overturn California's CCW law. The original attorney never filled out the form.
Once the NRA's attorney's got involved they changed the case to say the way San Diego was interpreting the law was wrong. However since the lawsuit originally about overturning the law they still had to fill out the form.

The most likely outcome is the guy arguing the case is going to have to waste a bunch of time telling the court why not sending the form is not important. However, there is a chance that the case will be sent all the way back to the original court because of this form.

In the Richards case they did send the form. However, the lower court did not send the form to the State. The rules say it does not matter who messed up that form has to be sent and it is on the people suing to double check that is was received by the state. So in Richards, they are going to have to spend time arguing why this does not matter. However, there is a really small chance that is might have to go back to the original court to.

This is the form. http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.3.0.pdf

spalterego
12-03-2012, 3:56 PM
My "short" attempt to provide a Layman's explanation of what is going on.

Federal Statute 42 U.S.C. 1983 which allows citizens to sue for violations of their civil rights has a provision (incorporated into Fed. Rule of Civil Procedure 5) requiring that if a plaintiff's lawsuit challenges a federal or state law as unconstitutional, the plaintiff/court are required to notify the Attorney General (if challenging a Federal law) or the relevant State AG (if challenging a state law) if the lawsuit does not name the state itself (or a state officer) as a defendant.

This makes some sense because if you are challenging the constitutionality of a law with either national or state application, the Court wants to make sure that a National or State level entity defend it.

So, in Peruta, the lawsuit named the Sheriff/county as a defendant. However, the Sheriff is not a State officer, only a county officer.
If the lawsuit challenges the constitutionality of California's Concealed Carry Licensing law, the rule is intended to allow the State AG a chance to take over the case and defend the state law, rather than having a mere County Officer defend the constitutionality of the law.

As it turns out, the Peruta plaintiff(s)/attorneys never notified the State AG and it appears that the Court itself failed to notify the State AG.

It may be arguable whether the Peruta claim challenges the Constitutionality of the California Concealed Carry licensing law. IF I recall correctly, the claim is that the San Diego county Sheriff's office interpretation or implementation of "may issue" and specifically of "good cause" violates Peruta's 2A rights.

Whether this distinction avoids the requirement for notification remains to be seen.

Likewise, I don’t know whether the Peruta attorneys strategically omitted the notice or did so out of ignorance of the requirement. (one could argue the Peruta claim does not challenge the constitutionality of the law and that they didn’t want to litigate against the state and would rather litigate against the county and thus purposefully failed to notify the state AG)

In Richards (the case Mr. Gura is litigating), the attorney’s did notify the State AG’s office that they were challenging the constitutionality of California’s Concealed Carry Licensing law (on a number of different grounds). However, while unclear, it seems that the Federal Dist. Court itself failed to notify the State AG.

Now, nearly on the eve of oral arguments in the three cases (scheduled for Friday Dec. 6, 2012), the Court of Appeals has advised the attorneys in the Richards (Gura) and Peruta cases to be prepared to discuss the import, if any, of the fact that the State of California (via the state Attorney General’s office) has failed to appear to defend the law.

Neither 1983 nor the Rules of Civil Procedure specify what the court should do in a situation where a claim clearly challenges the constitutionality of a state law but the plaintiff/court failed to notify the state AG. There have been some similar situations arise in the past and from those cases we THINK that the Court of Appeals has a fair amount of flexibility in choosing how to respond.

Peruta could argue and the Ct. of App. could decide that the lawsuit does NOT in fact challenge the constitutionality of the law and allow Peruta to proceed.

The Ct. of App. could disagree but decide that this harmless error and continue. It could stay a decision and ask the Cal. State AG to provide an opinion (does the AG want to get involved: if so, is the AG satisfied with getting involved at the Appeals stage or does the AG want it remanded to be retried at the Dist. Ct. level or something else). The Ct. of App. could decide the District Court lacked jurisdiction to try the case when it failed to notify the State AG and remand for retrial.

Unlike Peruta (where they appear to be arguing it is only the Sheriff’s application/interpretation that is being challenged) the Richard’s case explicitly challenges the constitutionality of the law. Accordingly, the Richard’s case clearly had to notify the State AG. Gura, the attorney for the Richards plaintiffs notified the State AG. However, this might not be technically sufficient if the Dist. Court itself failed to notify the State AG.

The Ct. of App. could decide that when the State AG receives actual notice (from the plaintiffs) it doesn’t matter if the technical requirement that the Dist. Ct. notify the State AG was not met. Alternatively, the Richards case could be in the same boat as Peruta if the Ct. of App. decides that only notice from the Dist. Ct. satisfies the requirement. I don't think this is likely but who knows.

In the initial post this was being presented as an example of why we should want experienced Civil Rights attorneys doing this kind of legal work. The Peruta attorney’s failed to notify the state AG (whether strategically or out of negligence I don’t know). This puts them at risk of having the Ct. of App. refuse to hear/decide their case delaying the ultimate resolution of that case, losing attorney’s fees etc.

I certainly agree with the sentiment and agree that Gura and SAF are better at this than Peruta et al. I do think that it would have been wiser for Peruta to wait. (even if Peruta ultimately wins and becomes the case the S. Ct. uses to announce “and bear” means carry that doesn’t mean it was the wisest or safest choice). However, while I do think that this is educational and may help illustrate the dangers of inexperienced counsel litigating high stakes important Civil Rights issues, I think that some people might have smelled a whiff of nyaa-nyaa boo-boo look at how those guys screwed up.

While I agree with the Richard/Gura camp as to the wisdom of the Peruta claim (or lack thereof) , I don’t think that means that the Richards/Gura camp is entirely devoid of ego. The back and forth between the Richards/Gura camp and the Peruta camp sometimes seems to devolve into a petty desire to get in the last word.

Is this good or bad for the overall fight for Carry Rights? Impossible to say.

IF the Ct. of Appeals finds that Peruta needed to but failed to provide notice to the state AG AND somehow “demotes” the Peruta case, I think that this is marginally better for the 2A because we then have what I think is a better case (Richards) and a better attorney (Gura) taking the clear lead in arguing for our carry rights.

If the Ct. of App. finds both Peruta AND Richards failed to provide a required notice AND then remands back to state court that would clearly delay our efforts to get a decision from the Ct. of Appeals. from the Ninth Cir. This should NOT affect the chances of our ultimately winning (or losing) the argument but does delay us by another 1-3 years. Of course with the composition of the S. Ct. in possible flux under an Obama presidency, it would be nice to get this before the S. Ct. sooner rather than later.

If the Ct. of App. allows both cases to go forward then we are in the same position we have been.

The S. Ct. could always take a 2A carry case from another circuit, but it would be nice to have a Ninth Cir. opinion, particularly if it found a 2A “carry” right and set up a conflict with other circuits.

kcbrown
12-03-2012, 7:04 PM
If the Ct. of App. finds both Peruta AND Richards failed to provide a required notice AND then remands back to state court that would clearly delay our efforts to get a decision from the Ct. of Appeals. from the Ninth Cir. This should NOT affect the chances of our ultimately winning (or losing) the argument but does delay us by another 1-3 years. Of course with the composition of the S. Ct. in possible flux under an Obama presidency, it would be nice to get this before the S. Ct. sooner rather than later.


We can't afford a delay of 3 years (probability of losing at least one of the Heller 5 to death in that time frame: roughly 37% (http://calguns.net/calgunforum/showpost.php?p=9805345&postcount=29)). I'd argue that we can't even afford a delay of 2 years (25% probability of losing a Heller 5 justice to death).

mike_schwartz@mail.com
12-03-2012, 7:35 PM
The reality is we've had multiple attempts to explain what this all means and possible outcomes. The reason we've had people try to decipher what is going on? Because this thread isn't about a court case, guns, the Second Amendment, rights, lawyers, education, or leadership. It wasn't started to keep people informed on the issues. that wasn't the intent.

This thread is a few guys running around the gun world hitting other pro-gunners with their purse becuase they're all emotional. Oh, and their little sister Brandon who wants to be one of the cool-guys too so he jumps on with his creative little snide remarks.

This thread is not productive it is counterproductive. This thread doesn't help. It hinders. It doesn't lead. It divides. The guys I am talking about have done some fantastic things to benefit Second Amendment rights, but when they get petty and Jr. High cheerteam like this...it's bad for everyone and everything everyone here is working to accomplish.

So let them have their little hissy fit, but ignore it. It's a waste of time. Get involved some other way instead.

moleculo
12-03-2012, 9:58 PM
Here's a thought, why don't we focus on the topic and leave the digs at each other and snide remarks at the door.

That way I don't have to delete a thread that has serious value and potential.

With all due respect Kestryll, this thread was started with the full intent of it turning into a dig. It's not that difficult to read between the lines here. If you don't want that type of content on the site, perhaps the best course of action is to delete the thread.

With regards to those that suggest the paperwork issue might result in the case(s) being remanded, I suggest that you go back and read what the real (as opposed to amateur) attorneys have posted in this thread.

Maestro Pistolero
12-03-2012, 10:05 PM
I see nothing in Gene's first post that remotely resembles a dig. What folks posted after went down a now all too familiar road here at CG.

FABIO GETS GOOSED!!!
12-03-2012, 10:26 PM
Yeah, and post 57 was just an afterthought! :laugh:

moleculo
12-03-2012, 10:42 PM
I see nothing in Gene's first post that remotely resembles a dig. What folks posted after went down a now all too familiar road here at CG.

Thursday morning, the Ninth Circuit Court of Appeals issued an order in both Richards and Peruta stating the following:

Factual, not a dig

Later that day, Alan Gura responded with this 28j Letter (attachment 1, 2 and 3.)

Factual, not a dig

Some of you have heard some of us remind that one should not lightly take on the task of challenging laws under the Second Amendment. This development tends to be evidence of why we say that.

-Gene

A direct dig at Peruta and his counsel, and not thinly veiled, either.

moleculo
12-03-2012, 10:46 PM
Yeah, and post 57 was just an afterthought! :laugh:

Actually, FGG makes a pretty valid point here. Gene directly accused the NRA attorneys of malpractice on a public forum in post 57.

That is a pretty serious accusation.

Where do we draw the line as to what is appropriate in this forum?

Ford8N
12-04-2012, 5:04 AM
My "short" attempt to provide a Layman's explanation of what is going on.


.......... right and set up a conflict with other circuits.



Thank you, now I understand.

This is looking like it has the potential to take decades to resolve. If people want to wait around California for the same gun rights as citizens across the border have, be prepared to wait a long time.

FABIO GETS GOOSED!!!
12-04-2012, 6:01 AM
This is looking like it has the potential to take decades to resolve.

If it does, it won't be because of the notice in question. The OP is just stirring the pot.

Mulay El Raisuli
12-04-2012, 6:13 AM
Thank you, now I understand.

This is looking like it has the potential to take decades to resolve. If people want to wait around California for the same gun rights as citizens across the border have, be prepared to wait a long time.


Its not THAT bad. Even if both cases have to re-start, worst case is that they'll take as long to get back to the 9th as they took to get there in the first place. And even if that happens, there are others cases in the pipeline. Most notably, Wollard v Maryland, which is much better case in all respects.


The Raisuli

kcbrown
12-04-2012, 6:53 AM
Its not THAT bad. Even if both cases have to re-start, worst case is that they'll take as long to get back to the 9th as they took to get there in the first place. And even if that happens, there are others cases in the pipeline. Most notably, Wollard v Maryland, which is much better case in all respects.


The problem is that some case in California has to be ruled on one way or the other, else the law in California remains standing no matter what the Supreme Court has said for non-California cases.

Every law that violates the Constitution must be challenged and won against individually, and they all remain standing until such a successful challenge.

So the Supreme Court could rule that carry in public is a right in cases brought in every other state, and it wouldn't have any effect on us until a case challenging the California law was won.


Let me put it in unambiguous terms via an hypothetical example. Suppose the Supreme Court had ruled in favor of carry in public in a case brought in every other state in the land (hence, a total of 49 cases). Suppose, too, that a California case like Richards was subsequently brought and the 9th Circuit did what the 9th Circuit does (ignore Supreme Court precedence) and ruled against us. Further suppose that the Supreme Court's composition changed between the time the case was brought and the time it was appealed to the Supreme Court, and that the Supreme Court subsequently denies cert. What's the end result? Answer: that the California law infringing upon the right to keep and bear arms remains standing, and does so despite the Supreme Court having upheld the right to keep and bear arms in public in every other state.


The end result is that what happens in other carry cases is irrelevant in the face of a circuit court that refuses to heed Supreme Court jurisprudence. This is why time is of the essence specifically for Richards, for even if Baker wins at SCOTUS, it will have no effect on us until we win Richards.


The takeaway here is that the only thing that wins in other cases changes is the jurisprudence that the courts are supposed to follow. Such jurisprudence is of no use when the courts that are supposedly governed by it are insistent upon ignoring it in favor of their own whims, something the 9th Circuit is famous for doing.

OleCuss
12-04-2012, 7:29 AM
The problem is that some case in California has to be ruled on one way or the other, else the law in California remains standing no matter what the Supreme Court has said for non-California cases.

Every law that violates the Constitution must be challenged and won against individually, and they all remain standing until such a successful challenge.

So the Supreme Court could rule that carry in public is a right in cases brought in every other state, and it wouldn't have any effect on us until a case challenging the California law was won.


Let me put it in unambiguous terms via an hypothetical example. Suppose the Supreme Court had ruled in favor of carry in public in a case brought in every other state in the land (hence, a total of 49 cases). Suppose, too, that a California case like Richards was subsequently brought and the 9th Circuit did what the 9th Circuit does (ignore Supreme Court precedence) and ruled against us. Further suppose that the Supreme Court's composition changed between the time the case was brought and the time it was appealed to the Supreme Court, and that the Supreme Court subsequently denies cert. What's the end result? Answer: that the California law infringing upon the right to keep and bear arms remains standing, and does so despite the Supreme Court having upheld the right to keep and bear arms in public in every other state.


The end result is that what happens in other carry cases is irrelevant in the face of a circuit court that refuses to heed Supreme Court jurisprudence. This is why time is of the essence specifically for Richards, for even if Baker wins at SCOTUS, it will have no effect on us until we win Richards.


The takeaway here is that the only thing that wins in other cases changes is the jurisprudence that the courts are supposed to follow. Such jurisprudence is of no use when the courts that are supposedly governed by it are insistent upon ignoring it in favor of their own whims, something the 9th Circuit is famous for doing.

You just might be overly pessimistic on this one.

Once we get a good "carry case" through SCOTUS we can start effectively using things like Preliminary Injunctions. IIRC, this will be a bit of a different animal than a regular civil rights suits like we've been forced to bring so far.

It'll still be frustrating and too slow, but I'm pretty sure that what SCOTUS does will have an effect here as well.

Gray Peterson
12-04-2012, 7:47 AM
You just might be overly pessimistic on this one.

Once we get a good "carry case" through SCOTUS we can start effectively using things like Preliminary Injunctions. IIRC, this will be a bit of a different animal than a regular civil rights suits like we've been forced to bring so far.

It'll still be frustrating and too slow, but I'm pretty sure that what SCOTUS does will have an effect here as well.

No one is more familiar with court delaying tactics than Alan Gura.

kcbrown
12-04-2012, 8:05 AM
You just might be overly pessimistic on this one.

Once we get a good "carry case" through SCOTUS we can start effectively using things like Preliminary Injunctions. IIRC, this will be a bit of a different animal than a regular civil rights suits like we've been forced to bring so far.


The only difference between a preliminary injunction approach and the standard approach is (as far as I know) the amount of time the court can officially take to respond, unless the preliminary injunction is actually issued.

You (and possibly others who argue the heightened efficacy of the PI approach) are failing to account for one very important thing: as regards 2nd Amendment action, the main benefit of the PI approach works only if the court sides with you. Which is to say, only if the PI is actually granted. But the very core of the problem is that the right to keep and bear arms is a right that the majority of relevant courts hate and will do everything in their (considerable) power to minimize. Those courts will not grant our preliminary injunction requests.



It'll still be frustrating and too slow, but I'm pretty sure that what SCOTUS does will have an effect here as well.

Oh, it'll have an effect, eventually. But not until we actually win California cases at that level. For the effects you speak of to actually take hold, we have to show that we can and will win against California respondents. That won't happen until it's clear to said respondents that the courts will side with us for the foreseeable future. The courts won't side with us in general, much less for the foreseeable future, until it's clear to them that the Supreme Court will side with us for the foreseeable future and that there are grave consequences to them for ignoring Supreme Court jurisprudence. But that latter can't happen in this environment because there is serious risk that we'll lose the Heller majority in just the next 4 years (which is a very short period of time in judicial terms), to say nothing of the next 10 or so.

Since the latter can't happen, the former won't happen, and that is why we must actually win all the California cases at the Supreme Court level. Preliminary injunctions will be useful for speeding up that process but will otherwise be useless against recalcitrant counties, because action against those counties has to be brought to courts in those areas.


No, I don't think I'm being overly pessimistic here at all, given what we're up against. Osterweil v Bartlett should be sufficient warning to us of what we can really expect.


One last thing: many here have been basing their assessment of the judicial situation on how courts have treated other, relatively benign issues. That is, how they've been behaving in general. But such behavior is not informative as to how they'll treat cases involving RKBA. RKBA is a right the courts in question hate with a passion and will do everything they can to extinguish. The informative historical context for this situation isn't that of the overall court behavior, it's that of the court behavior when they're faced with an issue they are passionate about and on which their bias conflicts with Supreme Court jurisprudence. The only thing that even comes close to our situation is that of the courts of the south during the civil rights movement. That's why NAACP v Alabama is so relevant.

kcbrown
12-04-2012, 8:57 AM
A note about examining behavior of the southern courts during the civil rights movement...

It's important to remember that back then, the district courts answered directly to the Supreme Court. As a result, there was no "buffer" between the district courts and the Supreme Court.

Today, the appellate courts act as a buffer between the district courts and the Supreme Court. District courts answer to the appellate courts' jurisprudence, not that of the Supreme Court. Supreme Court jurisprudence is supposed to become that of the appellate courts, but history shows that to be laughably optimistic (see, e.g., Silveira v Lockyer (http://scholar.google.com/scholar_case?case=13948185712203065755&q=silveira+v+lockyer&hl=en&as_sdt=2,5&as_vis=1) and the the en banc denial for it (http://scholar.google.com/scholar_case?case=16599538532304446493&q=silveira+v+lockyer&hl=en&as_sdt=2,5&as_vis=1), and pay attention especially to the 9th Circuit's definition of "militia" and how it conflicts with the Supreme Court's definition in Miller).

The very existence of the appellate courts makes possible widespread defiance of the Supreme Court, precisely because it is appellate court jurisprudence, and not Supreme Court jurisprudence, that district courts are beholden to.

OleCuss
12-04-2012, 9:02 AM
I think that is still a little overly pessimistic.

I think that if the SCOTUS gives clear and explicit guidance on the current 2-step mangling of the 2A that the district courts will start to rule accordingly. You'll end up with pressure from both the lower courts and from the higher court for the circuit courts to respect our rights.

You'll also get a certain amount of peer pressure from other circuits who fairly willingly follow SCOTUS guidance.

This will all have an effect. The effect will not be enough to make me thrilled with the outcomes, but it will be there.

M. D. Van Norman
12-04-2012, 9:02 AM
[W]hat are the actual good outcomes of carry cases to which you refer?

I am optimistic that we will prevail when cert is finally granted, because to believe otherwise would be to accept the unthinkable. But until then, and correct me if I am wrong, there are no positive outcomes yet on federal carry cases.

Any victories at district or circuit are just appetizers before the main course. :popcorn:

IVC
12-04-2012, 9:11 AM
You (and possibly others who argue the heightened efficacy of the PI approach) are failing to account for one very important thing: as regards 2nd Amendment action, the main benefit of the PI approach works only if the court sides with you. Which is to say, only if the PI is actually granted. But the very core of the problem is that the right to keep and bear arms is a right that the majority of relevant courts hate and will do everything in their (considerable) power to minimize. Those courts will not grant our preliminary injunction requests.

That's getting into territory of unrealistic.

The lower courts might not like the right, but no one in their right mind would go directly against a Supreme Court ruling. Very bad for their future careers. There are also recourses.

The rulings we are getting these days represent the lack of established precedent much more than any ideological position held by the courts. The whole game right now is to get a "carry case" in front of SCOTUS and expand on Heller dicta by creating a binding precedent. This will remove the wriggling room courts have now. However, expecting the courts to play outside the rules even after the framework is set is just, well, a stretch.

IVC
12-04-2012, 9:19 AM
Any victories at district or circuit are just appetizers before the main course. :popcorn:

Even more importantly, a win at circuit court would require the other side to petition the Supreme Court which they might choose not to do.

Bradys and the rest of the anti gunners all begged Chicago mayor Daley NOT TO appeal, so it was his pig headedness we have to thank for making McDonald ruling possible.

A win at the circuit level on a carry case is most important in creating a circuit split, but a loss is what enables our side to control the process and choose which case to (try to) bring in front of SCOTUS.

Kukuforguns
12-04-2012, 9:28 AM
You (and possibly others who argue the heightened efficacy of the PI approach) are failing to account for one very important thing: as regards 2nd Amendment action, the main benefit of the PI approach works only if the court sides with you. Which is to say, only if the PI is actually granted. But the very core of the problem is that the right to keep and bear arms is a right that the majority of relevant courts hate and will do everything in their (considerable) power to minimize. Those courts will not grant our preliminary injunction requests.

I have, without exception, been extremely impressed with every federal judge I have ever met. They are, without exception, extremely bright, hard-working people who have dedicated their lives to public service. To say that these good people will deny preliminary injunctions without regard to Supreme Court precedent is imprudent. Look at the 7th Circuit's order in Ezell, for an example of a court dutifully swallowing a bitter pill. Once the Supreme Court concludes that the people's RKBA includes public carry (in non-sensitive places), the vast majority of courts are going to fall in line. Yes, there will always be courts who interpret the Supreme Court's decisions narrowly. That is not unique to the RKBA -- think of all the decisions narrowing the right to obtain abortions. But I wholly disagree with your belief that judges in the Ninth Circuit will simply disregard Supreme Court precedent finding the RKBA includes public carry.

kcbrown
12-04-2012, 9:28 AM
I think that is still a little overly pessimistic.

I think that if the SCOTUS gives clear and explicit guidance on the current 2-step mangling of the 2A that the district courts will start to rule accordingly. You'll end up with pressure from both the lower courts and from the higher court for the circuit courts to respect our rights.


Osterweil v Bartlett acts as evidence otherwise.



You'll also get a certain amount of peer pressure from other circuits who fairly willingly follow SCOTUS guidance.


Maybe, and such pressure would be meaningful were this an issue that didn't carry this kind of weight. But the right to keep and bear arms is regarded as such a "dangerous" right by the courts in question that I can hardly see "peer pressure" having any meaningful effect on them.

kcbrown
12-04-2012, 9:34 AM
I have, without exception, been extremely impressed with every federal judge I have ever met. They are, without exception, extremely bright, hard-working people who have dedicated their lives to public service. To say that these good people will deny preliminary injunctions without regard to Supreme Court precedent is imprudent. Look at the 7th Circuit's order in Ezell, for an example of a court dutifully swallowing a bitter pill. Once the Supreme Court concludes that the people's RKBA includes public carry (in non-sensitive places), the vast majority of courts are going to fall in line. Yes, there will always be courts who interpret the Supreme Court's decisions narrowly. That is not unique to the RKBA -- think of all the decisions narrowing the right to obtain abortions. But I wholly disagree with your belief that judges in the Ninth Circuit will simply disregard Supreme Court precedent finding the RKBA includes public carry.

OOIDA v Lindley argues against your position here.

Ezell is not an example of a court swallowing a bitter pill. The 7th Circuit ruled in our favor in that case. It does not conflict with my previous statements.

kcbrown
12-04-2012, 9:36 AM
That's getting into territory of unrealistic.

The lower courts might not like the right, but no one in their right mind would go directly against a Supreme Court ruling. Very bad for their future careers. There are also recourses.


Ahem. Osterweil v Bartlett, a case that is about keep and bear in the home. The district court ruled in favor of New York despite Heller and McDonald. Nuff said.

Gray Peterson
12-04-2012, 9:54 AM
Ahem. Osterweil v Bartlett, a case that is about keep and bear in the home. The district court ruled in favor of New York despite Heller and McDonald. Nuff said.

It wasn't his home. It was a part time vacation residence. His home is in Louisiana.

OleCuss
12-04-2012, 10:16 AM
Osterweil v Bartlett acts as evidence otherwise.
.
.
.

Assuming that the cited case is relevant, you do understand that a sample of one case does not make a statistically supportable argument.

It may be evidence, but it is not convincing evidence.

speedrrracer
12-04-2012, 10:23 AM
It wasn't his home. It was a part time vacation residence. His home is in Louisiana.

So you're saying they would have ruled in his favor if it had been his primary residence?

Doesn't the law traditionally recognize "wherever you are legally sleeping" (I don't know any legal terms) as having home-like benefits?

kcbrown
12-04-2012, 10:34 AM
Assuming that the cited case is relevant, you do understand that a sample of one case does not make a statistically supportable argument.


Of course.



It may be evidence, but it is not convincing evidence.

It is an existence proof that the district courts can ignore Supreme Court jurisprudence if they so choose.

Gray Peterson
12-04-2012, 10:34 AM
So you're saying they would have ruled in his favor if it had been his primary residence?

Doesn't the law traditionally recognize "wherever you are legally sleeping" (I don't know any legal terms) as having home-like benefits?

He would not had a problem in re NY law if he had.

Let me also remind everyone that Osterweil in district court was pro se litigation. Paul Clement may have represented at appeals, but district court was done by Osterweil.

kcbrown
12-04-2012, 10:36 AM
He would not had a problem in re NY law if he had.


That doesn't necessarily follow.



Let me also remind everyone that Osterweil in district court was pro se litigation. Paul Clement may have represented at appeals, but district court was done by Osterweil.

Now that is something I did not know.

And it means that the real litmus test here is going to be how the 2nd Circuit rules on it.

I predict they will rule against Osterweil, in an attempt to narrow the scope of the 2nd Amendment as much as possible.

Kukuforguns
12-04-2012, 12:12 PM
Ezell is not an example of a court swallowing a bitter pill. The 7th Circuit ruled in our favor in that case. It does not conflict with my previous statements.Perhaps I need to be more explicit. The 7th Circuit's decision in McDonald (not to mention Chicago's laws) indicate that the 7th Circuit is not a friend of the RKBA. Nevertheless, following McDonald, the 7th Circuit issued the Ezell opinion, which is much less antagonistic to the RKBA. As you say, it ruled in favor of the RKBA. By issuing that order -- an order that is inconsistent with the perceived inclinations of the 7th Circuit -- the 7th Circuit swallowed a bitter pill (http://idioms.thefreedictionary.com/bitter+pill+to+swallow). It did something it did not like -- it ruled in favor of the RKBA. In other words, Ezell is evidence for the proposition that, in the context of the RKBA, federal courts are able to put aside personal feelings.

hvengel
12-04-2012, 12:21 PM
Perhaps I need to be more explicit. The 7th Circuit's decision in McDonald (not to mention Chicago's laws) indicate that the 7th Circuit is not a friend of the RKBA. Nevertheless, following McDonald, the 7th Circuit issued the Ezell opinion, which is much less antagonistic to the RKBA. As you say, it ruled in favor of the RKBA. By issuing that order -- an order that is inconsistent with the perceived inclinations of the 7th Circuit -- the 7th Circuit swallowed a bitter pill (http://idioms.thefreedictionary.com/bitter+pill+to+swallow). It did something it did not like -- it ruled in favor of the RKBA. In other words, Ezell is evidence for the proposition that, in the context of the RKBA, federal courts are able to put aside personal feelings.

At least some courts. The question is how pervasive this will be as SCOTUS issues more rulings that more clearly define the extent of the right.

IVC
12-04-2012, 12:32 PM
At least some courts. The question is how pervasive this will be as SCOTUS issues more rulings that more clearly define the extent of the right.

Not to follow SCOTUS on an explicit ruling is a counterpart of a coup.

We should be much more worried about which cases and when are going to reach SCOTUS and the likely outcomes based on the facts presented in those cases.

kcbrown
12-04-2012, 12:44 PM
Perhaps I need to be more explicit. The 7th Circuit's decision in McDonald (not to mention Chicago's laws) indicate that the 7th Circuit is not a friend of the RKBA. Nevertheless, following McDonald, the 7th Circuit issued the Ezell opinion, which is much less antagonistic to the RKBA. As you say, it ruled in favor of the RKBA. By issuing that order -- an order that is inconsistent with the perceived inclinations of the 7th Circuit -- the 7th Circuit swallowed a bitter pill (http://idioms.thefreedictionary.com/bitter+pill+to+swallow). It did something it did not like -- it ruled in favor of the RKBA. In other words, Ezell is evidence for the proposition that, in the context of the RKBA, federal courts are able to put aside personal feelings.

That's true, but I would argue that the 7th Circuit has been an outlier in that respect.

The reason I'd argue such is that the 7th Circuit actually heeded and adopted the reasoning behind the Heller and McDonald decisions. The majority of the courts have not done this. Instead, those courts have strictly limited their decision-making process to the holdings of Heller and McDonald. But per Supreme Court jurisprudence, the holdings themselves are not the extent of the jurisprudence set forth by the Supreme Court -- the reasoning behind the decisions are also part of the jurisprudence the Court builds. Gura referred, in at least one (and actually several, if I remember right) of his briefs, to a Supreme Court ruling that explicitly states such, but I can't for the life of me remember what brief(s) would have that reference.

Every court in the country which has asserted that the right (either in its entirety or at its core) is limited to the home per Heller and McDonald is intentionally going against Supreme Court jurisprudence. This behavior hasn't been the exception, it's been the rule.

You can't argue that these courts have been following Supreme Court jurisprudence when they pick and choose which jurisprudence to follow!

OleCuss
12-04-2012, 1:11 PM
Another way to look at what is happening is that the courts are actually being conservative.

So rather than invalidating a lot of laws by asserting that Heller/McDonald covers carry outside the home they are not assuming the role which should be occupied by the various legislatures.

Let's be rather blunt here. . . All those horrible, rights-trampling laws over which we rage at the courts for not overturning - were passed and signed into law by our elected officials. To claim it is the fault of the courts that those laws still exist is (to a significant extent) to mis-place responsibility.

And if you want a judiciary which is not totally out of control you might want to appreciate and encourage the courts when they do not willy-nilly overturn duly enacted laws.

This may sound strange from a person who strongly believes in the RKBA, but Heller and McDonald should fill us with sadness. The SCOTUS should never have had to intervene by writing those opinions. The POTUS, the Congress, and the various state officials (elected and unelected) should have been enforcing the RKBA since at least the passage of the 14th Amendment.

And what is a non-SCOTUS court to do when SCOTUS did not tell them how to implement the rulings we treasure? Especially when SCOTUS has since repeatedly refused to hear another good RKBA case?

In a sense the SCOTUS has been endorsing what the lower courts have been doing by refusing to take a case and render an opinion which would prevent the currently exceedingly narrow interpretations of Heller and McDonald.

The lower courts and circuits are in a difficult position right now. I hope SCOTUS will take a good case and correct the current idiocy, but I will mourn on the day that they do for the fact that they have to do this implies that the Executive and Legislative branches of our government have to be forced to show even minimal respect for our rights.

Right now the only branch of our government which is functionally even marginally at protecting our rights are the courts. Probably not wise to inveigh against them when they aren't responsible for the oppressive laws and are gradually fixing them.

Kukuforguns
12-04-2012, 1:12 PM
You can't argue that these courts have been following Supreme Court jurisprudence when they pick and choose which jurisprudence to follow!
No, what I am arguing is that once the Supreme Court holds that the RKBA extends to public areas (other than sensitive areas, which will require further litigation to define), the vast majority of courts will apply that holding.

Look, the Supreme Court intentionally issued two very limited opinions. Although I disagree with how the lower courts have applied Heller/McDonald to public carry cases, I believe that the holdings are not directly contrary to Heller/McDonald.

The lower courts, like many posters on this board, know that the scope of the RKBA depends upon a conservative majority on the Supreme Court. They know that if the Court changes its composition to a liberal majority before the scope of the RKBA is resolved, that the scope of the RKBA will be much narrower than if resolved with the Court's current composition. Accordingly, the lower courts that want a narrow RKBA, interpret Heller/McDonald as narrowly as they can. These decisions are creating their own precedent that will persist until the S. Ct. issues a contradictory opinion. If, because of a change in composition, the S. Ct. never issues a contradictory opinion, then the lower courts will have prevailed without ever having directly misapplied S. Ct. precedent. They are, in short, playing a waiting game.

On the other hand, I think that the odds of the S. Ct. accepting a public carry case in the relatively near future went up as a result of President Obama's victory. I'm not concerned we're going to lose the majority in the next 4 years. I'm concerned that the next President of the U.S. will not be a friend of the RKBA, and that we will lose the majority in the next 8 years.

kcbrown
12-04-2012, 1:44 PM
No, what I am arguing is that once the Supreme Court holds that the RKBA extends to public areas (other than sensitive areas, which will require further litigation to define), the vast majority of courts will apply that holding.


I do concede that as a possibility. I'm not confident of it (guns in public is very different, and much scarier to anti-gun courts, than guns in the home), but I admit it's possible.



Look, the Supreme Court intentionally issued two very limited opinions. Although I disagree with how the lower courts have applied Heller/McDonald to public carry cases, I believe that the holdings are not directly contrary to Heller/McDonald.


But their reasoning is directly contrary to Heller and McDonald to the extent they rely on the notion that the 2nd Amendment does not extend outside the home until the Supreme Court explicitly holds that it does. Gura's brief in Masciandaro points this out:


The Court’s extensive discussion of carrying firearms outside the home was not dictum. It is well established that

When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound . . . the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law. . . .


Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (citations and internal quotation marks omitted).


Again, you can't argue that the lower courts are following Supreme Court jurisprudence when they are picking and choosing which bits of that jurisprudence to follow!



The lower courts, like many posters on this board, know that the scope of the RKBA depends upon a conservative majority on the Supreme Court. They know that if the Court changes its composition to a liberal majority before the scope of the RKBA is resolved, that the scope of the RKBA will be much narrower than if resolved with the Court's current composition. Accordingly, the lower courts that want a narrow RKBA, interpret Heller/McDonald as narrowly as they can. These decisions are creating their own precedent that will persist until the S. Ct. issues a contradictory opinion. If, because of a change in composition, the S. Ct. never issues a contradictory opinion, then the lower courts will have prevailed without ever having directly misapplied S. Ct. precedent. They are, in short, playing a waiting game.


I agree. However, even if the Supreme Court issues a ruling on the issue, the lower courts can still ignore it in the hopes that it will reverse itself once its composition changes.



On the other hand, I think that the odds of the S. Ct. accepting a public carry case in the relatively near future went up as a result of President Obama's victory. I'm not concerned we're going to lose the majority in the next 4 years.


You should be (http://calguns.net/calgunforum/showpost.php?p=9805345&postcount=29).



I'm concerned that the next President of the U.S. will not be a friend of the RKBA, and that we will lose the majority in the next 8 years.

That is a grave concern of mine as well. In light of that very real possibility, why wouldn't the anti-gun courts ignore, to the extent that they can get away with it (meaning, right up to, but not to, the point where the Supreme Court issues arrest orders against them), any Supreme Court decisions that support RKBA in public?

nicki
12-04-2012, 2:01 PM
Heller and MacDonald had to get Justice Kennedy on board. Justice Kennedy probably was concerned about opening a Pandora's box with regard to gun rights.

As we head to future cases in front of the SCOTUS, the court will have had a track record since mid 2008 to see how the lower courts would use Heller.

What the lower courts have shown the SCOTUS is that there won't be an expansive and reckless application of the second amendment that has happened with other rights that the courts do like.

In the meantime, other rights get ruled on and the lower courts jump on rights they like.
Like it or not, the bill of rights is a chain and all the rights are interdependent links.

Many on both the right and left don't get this, they think they can pick and choose which is why the bill of rights is in shreds.

I predict that the US Supreme court will rule that gay marriage is a constitutional right under equal protection under the law, it will be at least a 5 to 4 ruling with Kennedy being the swing vote.

Equal protection, right to travel and I am sure some other rights will be connected when we finally get a carry case in front of the SCOTUS.

Gay Marriage is going to help carry, especially here in the 9th.

The lower courts are stumbling over themselves figuring creative ways to undermine our rights and ignore the intent and spirit of the Heller case.

IMHO, Heller was written in such a way to give the lower courts plenty of room to hang one's self.

Right now we are in a jam for at least the next two years because certain republican candidates may have cost Romney not only the election, but possibly numerous US Senate seats as well.

The Senate confirms federal appeal court judges and having a track record of voting the wrong way on the second amendment may possibly derail nominations.

Since there will be few gun bills, judicial nominations will become a factor in rating how pro gun a senator is.

A judge who has ruled the wrong way on gun cases will put senators on notice. The republicans have shot themselves in the head on social issues and as such have to find something to rebuild on.

Gun rights and the other rights that are inter-connected by default will be a vehicle.

As Gene says, this is a chess game and in a chess is a war game where pieces are either lost or sacrificed in order to win the game.

One key thing that must be done to win a chess game is to be on offense and having the other side of balance and playing defense.

The other side is playing defense and although we do have setbacks, the truth is we are moving forward. Gun sales are up, CCW permits are up, crime is down and Americans are turning against prohibition as a government policy.

Winning starts with an attitude, if you believe you are a loser, you are.


Nicki

Kukuforguns
12-04-2012, 2:15 PM
That is a grave concern of mine as well. In light of that very real possibility, why wouldn't the anti-gun courts ignore, to the extent that they can get away with it (meaning, right up to, but not to, the point where the Supreme Court issues arrest orders against them), any Supreme Court decisions that support RKBA in public?Because the people who make the decisions are good people who strongly believe that they must abide the rulings of the S. Ct. You seem unwilling to accept the difference between a lower court reading a S. Ct. opinion narrowly and a lower court issuing a ruling that is directly contrary to S. Ct. precedent. Read OleCuss's post. It's a good post. Courts have a longstanding tradition of reluctance to declare the work of the Legislative branch to be unconstitutional. I think that the lower courts' refusal to apply the RKBA is based upon something more than that reluctance. Nevertheless, the lower courts are reading Heller/McDonald in a way that the S. Ct. invited. Both cases are replete with language claiming the opinions are limited.

the lower courts can still ignore it in the hopes that it will reverse itself once its composition changes.
I suggest that the Court is unlikely to reverse itself. Before a liberal majority would reverse Heller/McDonald they would have to be very sure that there would never again be a conservative majority, because a conservative majority could reverse Roe v. Wade. That being said, the scope of the RKBA is largely unresolved. A liberal majority could neuter the RKBA without ever reversing Heller/McDonald.

bulgron
12-04-2012, 2:15 PM
This may sound strange from a person who strongly believes in the RKBA, but Heller and McDonald should fill us with sadness. The SCOTUS should never have had to intervene by writing those opinions. The POTUS, the Congress, and the various state officials (elected and unelected) should have been enforcing the RKBA since at least the passage of the 14th Amendment.

Actually, the founders knew that government would eventually act to violate the terms set forth in the constitution, which is why they gave us a federal court. The whole point is to use the court to force government back into the narrow channels allowed to them. So from that perspective, Heller and McDonald don't trouble me at all. The need to overturn bad laws was predicted right from the get-go.

The founders also worried that the federal courts wouldn't do what they were designed to do. For a long time those worries seemed without foundation, but somewhere after the civil war the courts started proving that they wouldn't necessarily act to uphold the letter and intent of the constitution. In fact, Slaughter-House was (to my knowledge) the first time that the Supreme Court deliberately thumbed it's nose at the legislative branch, and the plain meaning of a portion of the constitution. It wasn't the last time.

Since the 1930's, we've had a long, tortured history of the federal courts deliberately, step by step, working to dead letter the Second Amendment. They used some seriously broken logic to do it too. That we somehow ended up with Heller and McDonald was actually a bit of a historical oddity when viewed against the actions of the courts relative to gun control throughout the 20th century.

Now that the lower courts are fixated on the In The Home argument, this is just more of the same dead-lettering activities that the courts have engaged in for 80 years. We could have put an end to that nonsense with a Republican President and the promise of an originalist SCOTUS for decades to come. But with the country voting liberal, the lower courts are content to bide their time, delay, and wait for the composition of the Supreme Court to change so they can dead letter the Second Amendment once and for all.

This, they will do unless we work to protect or even strengthen the originalist philosophy in the federal courts. You can count on it.

kcbrown
12-04-2012, 2:34 PM
I suggest that the Court is unlikely to reverse itself. Before a liberal majority would reverse Heller/McDonald they would have to be very sure that there would never again be a conservative majority, because a conservative majority could reverse Roe v. Wade.


A conservative majority could reverse Roe v Wade, but to do so would mean they would be ignoring stare decisis, which is a conservative construct (meaning that it minimizes change). And while conservatism has changed its nature over time, it still has some elements of traditional conservatism (reluctance to change).

A liberal majority would be a majority composed of people who believe that the Constitution means what they want it to mean. Stare decisis would be used by such people only to bolster their arguments to uphold and reinforce decisions they agree with. Said majority would almost certainly realize that a conservative majority would be more inclined to follow stare decisis than they would, and so would probably be relatively unconcerned about the possibility of Roe v Wade being reversed.



That being said, the scope of the RKBA is largely unresolved. A liberal majority could neuter the RKBA without ever reversing Heller/McDonald.

That depends partly on how much Supreme Court jurisprudence is built up before they gain control. If the liberal majority is inclined to ignore stare decisis for the decisions in question, then it could neuter RKBA entirely, including reversing Heller and McDonald. But absent such an inclination, the degree of neutering would depend on how much of the right has already been spelled out by the Court previously.

wolfwood
12-04-2012, 2:46 PM
We can't afford a delay of 3 years (probability of losing at least one of the Heller 5 to death in that time frame: roughly 37% (http://calguns.net/calgunforum/showpost.php?p=9805345&postcount=29)). I'd argue that we can't even afford a delay of 2 years (25% probability of losing a Heller 5 justice to death).

Well if you recall there are several related cases. Bircht v. Beck would in all likelihood by heard first as it is already on appeal in the incredibly unlikely chance that both get remanded as that case has been fully briefed.

Counsel in Peruta filed a motion that listed all the related cases. Apparently the relief sought is identical to Peruta. The Birdt appeal seeks almost identical relief as the Peruta appellants (i.e.,
that issuing authorities must recognize self-defense as “good cause” for issuance
of a Carry License because such a license is the only manner to lawfully bear arms
in California).3

http://michellawyers.com/wp-content/uploads/2010/11/Peruta_Conformed-Appellants-Notice-of-Additional-Related-Cases-and-Status-Therof.pdf

Meplat
12-04-2012, 2:56 PM
We can't afford a delay of 3 years (probability of losing at least one of the Heller 5 to death in that time frame: roughly 37% (http://calguns.net/calgunforum/showpost.php?p=9805345&postcount=29)). I'd argue that we can't even afford a delay of 2 years (25% probability of losing a Heller 5 justice to death).

Have a think on this. There is an Obama super majority in the senate. Democrats are making noises about abolishing the filibuster. The Constitution does not specify the number of justices on the Supreme Court.

At least two presidents, Lincoln & FDR, have in the past gotten what they wanted out of SCOUTS by merely threatening to pack the court. Appoint two new justices and our 5-4 becomes 6-5, time is of the essence!

Look it up. It is true. Does anyone really put that kind of slimy crap past Obama?! Be afraid; then get off your butt and start writing checks and letters.

IVC
12-04-2012, 3:02 PM
There is an Obama super majority in the senate.

Not quite.

Meplat
12-04-2012, 3:16 PM
That's getting into territory of unrealistic.

The lower courts might not like the right, but no one in their right mind would go directly against a Supreme Court ruling. Very bad for their future careers. There are also recourses.

The rulings we are getting these days represent the lack of established precedent much more than any ideological position held by the courts. The whole game right now is to get a "carry case" in front of SCOTUS and expand on Heller dicta by creating a binding precedent. This will remove the wriggling room courts have now. However, expecting the courts to play outside the rules even after the framework is set is just, well, a stretch.

????????What! How many how many lower court judges do the Justices appoint? Lower court judges need to kiss up to POTUS and senators.

Meplat
12-04-2012, 3:22 PM
I have, without exception, been extremely impressed with every federal judge I have ever met. They are, without exception, extremely bright, hard-working people who have dedicated their lives to public service. To say that these good people will deny preliminary injunctions without regard to Supreme Court precedent is imprudent. Look at the 7th Circuit's order in Ezell, for an example of a court dutifully swallowing a bitter pill. Once the Supreme Court concludes that the people's RKBA includes public carry (in non-sensitive places), the vast majority of courts are going to fall in line. Yes, there will always be courts who interpret the Supreme Court's decisions narrowly. That is not unique to the RKBA -- think of all the decisions narrowing the right to obtain abortions. But I wholly disagree with your belief that judges in the Ninth Circuit will simply disregard Supreme Court precedent finding the RKBA includes public carry.

Please! Spin me some more cotton candy clouds to go with my unicorn farts!

Meplat
12-04-2012, 3:46 PM
Not quite.

What can I say, I’m mathematically challenged I guess. :o

IVC
12-04-2012, 3:59 PM
????????What! How many how many lower court judges do the Justices appoint? Lower court judges need to kiss up to POTUS and senators.

There is more to being a professional than the confirmation hearings.

kcbrown
12-04-2012, 4:25 PM
There is more to being a professional than the confirmation hearings.

There's nothing more to getting the job than the nomination and the confirmation hearings, and once you've got the job, you're set for life. There probably isn't a job out there that has more job security than a federal court appointment does.

More to the point, the politicians are the only people that matter when it comes to getting a job on the bench (be it at SCOTUS, a circuit court, or a district court).

The rulings that a judge issues are entirely irrelevant to their career advancement except to the degree they impress or repulse politicians. Politicians are corrupt and evil, because their entire purpose in life is to pass legislation restricting the freedom of the citizenry while simultaneously convincing the citizenry that said restrictions are somehow a good thing. As such, politicians aren't going to give a flying fig about how consistent those rulings are with respect to Supreme Court jurisprudence, nor how legally brilliant they are, except to the degree they affect the one thing the politicians are going to care about: how effective the candidate would be in advancing the politician's political agenda. For a SCOTUS appointment, the consistency of the judge's rulings with Supreme Court jurisprudence is of no consequence whatsoever, because the SCOTUS positioning means the candidate will have the power to ignore that jurisprudence entirely.

Drivedabizness
12-04-2012, 5:00 PM
Have a think on this. There is an Obama super majority in the senate. Democrats are making noises about abolishing the filibuster. The Constitution does not specify the number of justices on the Supreme Court.

At least two presidents, Lincoln & FDR, have in the past gotten what they wanted out of SCOUTS by merely threatening to pack the court. Appoint two new justices and our 5-4 becomes 6-5, time is of the essence!

Look it up. It is true. Does anyone really put that kind of slimy crap past Obama?! Be afraid; then get off your butt and start writing checks and letters.

Hello McFly!

CONGRESS regulates the Federal Courts. No President can change the number of seats on the Court. Period. Done. Thanks for playing.

And do date, Obama's extra/unConstitutional actions still poll badly. As would Reid trying to do the nuclear option with so many vulnerable Dems up in '14.

Funtimes
12-05-2012, 5:40 AM
Well if you recall there are several related cases. Bircht v. Beck would in all likelihood by heard first as it is already on appeal in the incredibly unlikely chance that both get remanded as that case has been fully briefed.

Counsel in Peruta filed a motion that listed all the related cases. Apparently the relief sought is identical to Peruta.

http://michellawyers.com/wp-content/uploads/2010/11/Peruta_Conformed-Appellants-Notice-of-Additional-Related-Cases-and-Status-Therof.pdf

Did he NOTIFY the State lol?

wolfwood
12-05-2012, 6:11 AM
Did he NOTIFY the State lol?

I'd argue he'd likely not need to since the relief he seeks is similar to the current version of Peruta where they are only seeking to challenge the interpretation of CA CCW statute.

HowardW56
12-05-2012, 11:07 AM
Hopefully there will be one or more people Tweeting in the audience.

Who will be tweeting, what accounts?

Gray Peterson
12-05-2012, 12:04 PM
I have been doing my best not to get drawn into this, but I must comment here that it begs the question of who decides who are " people who are not competent in strategic civil rights litigation."

Sure, there are some obvious examples. Others are less obvious. However, in this case, the judgement is being made by those who think they are the only ones who are competent, and therefore have a vested interest in trashing the others.

The vested interest is saving the Second Amendment's full effect, not filing lawsuits purely as a fundraising gimmick (NRA-ILA v. Chicago).

Almost no one trashed Thurgood Marshall & Charles Hamilton Houston in the black community (except for the ones who generally were violent revolutionary types) when they were litigating the college schooling & equal government pay issues in the years of leadup to Brown, because on top of just generally needing to survive, they knew that slinging arrows at their competent litigators (as NRA-ILA aligned people kept doing to Gura and keeps doing so until this day) was unwanted, there simply was too much was at stake. You can bet that Marshall & Houston and the people around them did everything to discourage "crazy person"/fundraising gimmick lawsuits. Some gun owners, and some gun rights litigators, confuse ego with competence.

Remember: NRA-ILA started the war of competence first. They accused Gura of filing litigation with no 2A experience or no competence on the issue, despite the fact that he was a former Deputy AG for the State of California who defended it in civil litigation (and therefor has a keen eye to errors made typically by plaintiffs). Gura proved them wrong and won Parker. He almost didn't win Parker because Mr. Halbrook filed sham litigation in Seegars naming John Ashcroft as one of the defendants, thinking that because of the recent change in interpretation at the federal level, they would side with the NRA's case and essentially screw over DC.

It did not happen that way because Halbrook has no idea how the US Justice Department works. Seegars bringing the much more competent counsel of the US DOJ over the incompetent counsel of the DC AG's office, they brought up defenses that the City did not bring up, such as standing. After Heller applied for gun registration and was denied, and when USDOJ brought up the standing issue, and the other Parker plaintiffs went down to attempt to register their guns, the Metro Police Department refused to give them applications and closed the window on them.

All this because Halbrook & the NRA-ILA had to control the 2A narrative at all costs.

I have the greatest respect for Gura. But I am a little tired of the "Drink the Koolaid" cult that surrounds him.

Santa Maria & Torrance were not wins for the TBJ camp, despite it being done by lawyers supposedly more familiar with Preston's work.

wildhawker
12-05-2012, 12:40 PM
Hopefully there will be one or more people Tweeting in the audience.

Who will be tweeting, what accounts?

I'll have @combs_brandon, at least 3 there will have @CalgunsFdn, and I'll have @2AFDN running also.

-Brandon

Glock22Fan
12-05-2012, 1:04 PM
The vested interest is saving the Second Amendment's full effect, not filing lawsuits purely as a fundraising gimmick (NRA-ILA v. Chicago).


Your judgement again.


Santa Maria & Torrance were not wins for the TBJ camp, despite it being done by lawyers supposedly more familiar with Preston's work.

Who brought Preston into this? I do have a mind of my own.

And you guys took over Preston's work in Santa Clara and lost that one, despite reworking it to suit your idea of where Preston got it wrong. Are you the right people to throw stones?

Crom
12-05-2012, 1:30 PM
... because Mr. Halbrook filed sham litigation

It did not happen that way because Halbrook has no idea how the US Justice Department works.

All this because Halbrook & the NRA-ILA had to control the 2A narrative at all costs.


Don't throw Steven (http://www.stephenhalbrook.com/profile.html) under the bus or anything...

wolfwood
12-05-2012, 1:32 PM
My one concern with the current state of things is its essentially two guys currently doing all the litigation. Donald Kilmer and Alan Gura. The victories have been easy cases like the various resident alien case or criminal defense attorney's pulling off small miracles when the issue was forced on them such as in Yanna and to a lessor degree Weaver. The one thing that, in the long run, the NRA guys in California are doing better is they are part of big firms so their younger guys are getting groomed to take over. Its not like Second Amendment litigation going to be decided in 20 years. Gitlow incorporated freedom of speech in 1914 and the body of law is still being built on. While I am sure their is something being done it does not appear like a new generation is being groomed. Levy and Clark Nelly were the motivating forces behind Heller but went back to other worthy pursuits. It seems like SAF should reach out to Nelly's Institute for Justice or follow their model in order to groom a new generation. Either that or figure out some accord with the NRA where the NRA still gets credit but SAF works independently. I may be speaking from ignorance as I only recently began learning about the politics involved here. If there is a preexisting plan please do correct me.


edit as to Mr. Halbrook. I don't know about his abilities as a lawyer but I do know that I drafted all of the history in Baker and his material was very helpful. Regardless of how he is in other fields he is a fine historian.

Gray Peterson
12-05-2012, 2:10 PM
Don't throw Steven (http://www.stephenhalbrook.com/profile.html) under the bus or anything...

Halbrook is an excellent 2A scholar. He's also a excellent 10A/Commerce Clause litigator. He is not an excellent 2A litigator, and we don't need "good". We need excellent. Period.

wildhawker
12-05-2012, 2:12 PM
Crom, what bus? You mean the one he built for himself?

Glock22Fan
12-05-2012, 2:16 PM
Halbrook is an excellent 2A scholar. He's also a excellent 10A/Commerce Clause litigator. He is not an excellent 2A litigator, and we don't need "good". We need excellent. Period.

Was Gura born into this world as an excellent 2A litigator? Was he the only one? It's a sad day if there will never be another one.

wildhawker
12-05-2012, 2:23 PM
You're right that there will never be another Gura.

NRA has and continues to be somewhere between a huge thorn and a huge risk to 2A litigation.

OleCuss
12-05-2012, 2:51 PM
My one concern with the current state of things is its essentially two guys currently doing all the litigation. Donald Kilmer and Alan Gura. The victories have been easy cases like the various resident alien case or criminal defense attorney's pulling off small miracles when the issue was forced on them such as in Yanna and to a lessor degree Weaver. The one thing that, in the long run, the NRA guys in California are doing better is they are part of big firms so their younger guys are getting groomed to take over. Its not like Second Amendment litigation going to be decided in 20 years. Gitlow incorporated freedom of speech in 1914 and the body of law is still being built on. While I am sure their is something being done it does not appear like a new generation is being groomed. Levy and Clark Nelly were the motivating forces behind Heller but went back to other worthy pursuits. It seems like SAF should reach out to Nelly's Institute for Justice or follow their model in order to groom a new generation. Either that or figure out some accord with the NRA where the NRA still gets credit but SAF works independently. I may be speaking from ignorance as I only recently began learning about the politics involved here. If there is a preexisting plan please do correct me.


edit as to Mr. Halbrook. I don't know about his abilities as a lawyer but I do know that I drafted all of the history in Baker and his material was very helpful. Regardless of how he is in other fields he is a fine historian.

I like the idea of grooming additional litigators and coordinating efforts. I'm not sure that accomplishing all this is strictly within the control of either SAF or CGF.

But IIRC, Gura/SAF have not been behind all the litigation. I think that the primary litigator in Gray's case has not been Gura/SAF. Gray has used another competent attorney who was appropriate to the case and Gura has been added on to facilitate any SCOTUS litigation and to assist on the case to a limited degree.

Thing is, at this point in time the volume of appropriately timed and sequenced 2A litigation is actually pretty small. If you go far outside the current framework developed by the strategists/litigators who developed that framework you have a very high probability of getting something you really shouldn't want.

I remember when my house was being built. It was being built by the developer/contractor but I went by to see what was happening virtually every day. One day I found that the framers had done a very good job of putting in a wall between the hallway and the master bedroom. Very competently done - but there was supposed to be a door there if there was to actually be access to the bedroom!

Another time I came by and discovered they were putting in a chimney where the gas fireplace was going to go! The chimney would have cost them more money and made the roof more complex than I wanted there. They did a good job, but it was the wrong job.

Right now I think the litigation is like that. You need someone who knows exactly what has to go where in order to make sure everything is sequenced and structured properly. You let competent folk who don't understand the plan working without supervision and they'll do a very good job of making our rights inaccessible.

So you coordinate with Gura/SAF even if they don't do the litigating at the district and circuit levels. But about the only 2A litigators who ought to be touching the SCOTUS right now are Gura and (maybe) Clement. I like Gura, but Clement has an amazing amount of SCOTUS litigation so maybe there is some advantage to his arguing at that level - but I'd want him closely coordinating with Gura.

wildhawker
12-05-2012, 2:59 PM
Wolfwood, perhaps you would research the litigation before making broad assertions about how our cases are apportioned and managed. How many 2A cases have those "big" firms won again?

wolfwood
12-05-2012, 3:08 PM
I completely agree with you. And Alan Gura is the guy who should be doing the big stuff. It really is amazing 2 guys are shaping a entire body of law. I am talking about building the next generation. The ACLU has attorneys that have been groomed to replace the old guard. The Institute for Justice is doing amazing work for Libertarianism and by building a coalition via internshps, workshops, etc. they are ensuring that their particular causes will be fought on long after the original attorneys retire. I'm not suggesting that is Kilmer or Gura's job. I am suggesting that 50 years from now a libertarian style ACLU that encompasses gun rights would be something amazing to have.

I think you guys are doing a amazing job as to the litigation and it is very well thought out. I am just referring to setting something up for the future. I am in no shape way or form critizing your very well thought out efforts. And i think it is amazing what you have done with a very small staff compared to say the ACLU. I was just making a observation that you/d have law students jumping at the opportunity to work for free for you guys. I'm sorry if I sounded critical. It was not meant to be just aspirational.

OleCuss
12-05-2012, 3:35 PM
Interestingly enough, a year or two ago CGF was (IIRC) exploring the idea of providing some sort of continuing education program for lawyers. Of course it was to be dealing with 2A litigation.

I do not know what came of that, but it seemed to me that they were thinking along the same lines as you are.

moleculo
12-05-2012, 9:31 PM
A well thought out strategy of any type has both a contingency plan and a continuity plan. In this case, the contingency plan might be about what to do when undesired litigation by other parties that doesn't follow "your plan" occurs. The continuity plan could be about what to do when Gura (God forbid) gets hit by a bus. In either case, wringing your hands about something that comes to pass that you can't control doesn't affect the outcome in your favor. Planning for the unlikely might ensure success.

Mulay El Raisuli
12-06-2012, 9:09 AM
Perhaps I need to be more explicit. The 7th Circuit's decision in McDonald (not to mention Chicago's laws) indicate that the 7th Circuit is not a friend of the RKBA. Nevertheless, following McDonald, the 7th Circuit issued the Ezell opinion, which is much less antagonistic to the RKBA. As you say, it ruled in favor of the RKBA. By issuing that order -- an order that is inconsistent with the perceived inclinations of the 7th Circuit -- the 7th Circuit swallowed a bitter pill (http://idioms.thefreedictionary.com/bitter+pill+to+swallow). It did something it did not like -- it ruled in favor of the RKBA. In other words, Ezell is evidence for the proposition that, in the context of the RKBA, federal courts are able to put aside personal feelings.


Just as what happened after Brown v Board of Education, Miranda, etc. Which is why I think that KCBrown is just a tad too pessimistic.

The rest of what you've posted is good also.


The Raisuli

Coded-Dude
12-06-2012, 9:26 AM
Will the arguments be posted in audio form? I have been following CGF and 2AF on twitter, but would love to hear the full arguments.

ripcurlksm
12-06-2012, 9:51 AM
So the first case ended a litle bit ago. I followed the CGF twitter updates.. how did we do?

CEDaytonaRydr
12-06-2012, 9:56 AM
how did we do?
Yeah, I'm curious too...:popcorn:

Coded-Dude
12-06-2012, 9:57 AM
They are arguing the third case already(Baker). Peruta went ok(from what I could tell), but Gura killed it on Richards. Yolo was making stuff up as they went along...it was pretty sad.

I really hope we will be able to listen to the arguments.

hornswaggled
12-06-2012, 10:13 AM
HI sounds like a mess too.

Librarian
12-06-2012, 10:19 AM
Will the arguments be posted in audio form? I have been following CGF and 2AF on twitter, but would love to hear the full arguments.

Sometimes they are, sometimes not.

Could be as soon as tomorrow or Monday if it becomes available.

FABIO GETS GOOSED!!!
12-06-2012, 2:29 PM
Unluckily, for the Peruta plaintiff lawyers (Neuharth, Michel/Associates, and Clement), because of their lack of compliance with the state AG notification requirement, even the 9th Circuit sends back the case to have it all redone from scratch, all the Section 1988 billable hours from after the notification requirement window the first time around (around October of 2009) until it's sent back down to district to redo it all again, are now unrecoverable. That includes Mr. Clement's $1000/hour fee for his involvement in the case.

Not going to happen.

Anywhere from tens of thousands to potentially hundreds of thousands of dollars in NRA-ILA/CRPAF money was just tossed down the drain that cannot be recovered from the San Diego Treasury in attorney fees. That money comes from your NRA memberships & donations to NRA-ILA, and also any donations you make to CRPAF as well.

Didn't happen.

Mr. Clement, rather than making merits arguments on 2A, will likely get tied into a knot in re the notification issue during his 20 minutes of argument.

Didn't happen.

The point of the OP was not about "gloating" and "infighting". It's about pointing out actual examples of lack of competence with basic federal rules of civil procedure that must be complied with, that people who have no business filing federal lawsuits should not be doing vanguard civil litigation in this fashion.

Bad example lol.

Perhaps after oral argument, where we can see the results of the damage done by this bungled situation, NRA members should call up ILA, and CRPA members call up CRPA Foundation, and ask them why they are paying for massive mistakes such as this apparent horror show.

Then again, perhaps not! :laugh:

Lots of fail here lol.

1ytCEuuW2_A

wildhawker
12-06-2012, 2:50 PM
Fabio, were you at orals or did Chuck phone it in to you?

FABIO GETS GOOSED!!!
12-06-2012, 2:53 PM
Fabio, were you at orals or did Chuck phone it in to you?

Duh, the audio is up. And you, and hoffmang, and Gray Peterson, were wrong. lol.

wildhawker
12-06-2012, 2:58 PM
What prediction did I make that was wrong again?

sighere
12-06-2012, 3:14 PM
Interestingly, I posited that 12031 needed to be facially challenged over a year ago, a position that was met with derision on this forrum. Alan Gura saw the light and in fact stated that the unconstitutional discretion granted to sheriffs actually flows from that statute, and is thereby the cause. just sayin....

live2suck
12-06-2012, 3:18 PM
Audio for those that care.

http://www.thegunmag.com/audio-safs-alan-gura-makes-argument-today-in-richards-v-prieto/

CaliforniaLiberal
12-06-2012, 4:59 PM
This link to the audio of today's 9th Circuit oral argument worked better for me.

http://www.ca9.uscourts.gov/media/view.php?pk_id=0000010111

kaligaran
12-06-2012, 5:14 PM
Here's all 3 (courtesy of the other thread on calguns):

Edward Peruta, et al. v. County of San Diego, et al. found here: http://www.ca9.uscourts.gov/datastor...6/10-56971.wma

Christopher Baker v. Louis Kealoha, et al. found here: http://www.ca9.uscourts.gov/datastor...6/12-16258.wma

Adam Richards, et al. v. Ed Prieto, et al. found here: http://www.ca9.uscourts.gov/datastor...6/11-16255.wma

Clownpuncher
12-06-2012, 6:16 PM
So, according to that Prieto lawyer, I can open carry to my hearts content in my own yard, front or back, fence or now fence, and I'll be in compliance?
Did I miss something or was he just spouting off BS in an attempt to deflect from the real issue?

Maestro Pistolero
12-06-2012, 6:39 PM
Can anyone host these as mp3s?

First I have to miss the orals due to a last minute work travel, now I'm stuck on the road with a POS Kimble fire that wont play WMAs. Help!

CitaDeL
12-06-2012, 7:01 PM
So, according to that Prieto lawyer, I can open carry to my hearts content in my own yard, front or back, fence or now fence, and I'll be in compliance?
Did I miss something or was he just spouting off BS in an attempt to deflect from the real issue?

Bolded pretty much gets it. Seemed every time he opened his mouth he was misquoting statute either purposefully or ignorantly broadening the actual ability to carry a gun in most circumstances*.


*Subject to exceptions which he does not articulate.

live2suck
12-06-2012, 7:06 PM
So, according to that Prieto lawyer, I can open carry to my hearts content in my own yard, front or back, fence or now fence, and I'll be in compliance?
Did I miss something or was he just spouting off BS in an attempt to deflect from the real issue?

Don't forget you can LOC in your car from your home to the range. :rolleyes:

hornswaggled
12-06-2012, 7:54 PM
Bolded pretty much gets it. Seemed every time he opened his mouth he was misquoting statute either purposefully or ignorantly broadening the actual ability to carry a gun in most circumstances*.


*Subject to exceptions which he does not articulate.

"Look, everyone can carry a gun while naked in their bathroom listening to Boston's Third Stage, AND to and from the toilet. I don't see why any of us are here!!!"

ebourqui
12-06-2012, 9:16 PM
Can anyone host these as mp3s?

MP3: Edward Peruta, et al. v. County of San Diego, et al. (http://casesninthcircuit.s3.amazonaws.com/10-56971_Edward_Peruta%2C_et_al._v._County_of_San_Die go%2C_et_al..mp3)
MP3: Adam Richards, et al. v. Ed Prieto, et al. (http://casesninthcircuit.s3.amazonaws.com/11-16255_Adam_Richards%2C_et_al._v._Ed_Prieto%2C_et_a l..mp3)
MP3: Christopher Baker v. Louis Kealoha, et al. (http://casesninthcircuit.s3.amazonaws.com/12-16258_Christopher_Baker_v._Louis_Kealoha%2C_et_al. .mp3)

Maestro Pistolero
12-06-2012, 9:24 PM
MP3: Edward Peruta, et al. v. County of San Diego, et al. (http://casesninthcircuit.s3.amazonaws.com/10-56971_Edward_Peruta%2C_et_al._v._County_of_San_Die go%2C_et_al..mp3)
MP3: Adam Richards, et al. v. Ed Prieto, et al. (http://casesninthcircuit.s3.amazonaws.com/11-16255_Adam_Richards%2C_et_al._v._Ed_Prieto%2C_et_a l..mp3)
MP3: Christopher Baker v. Louis Kealoha, et al. (http://casesninthcircuit.s3.amazonaws.com/12-16258_Christopher_Baker_v._Louis_Kealoha%2C_et_al. .mp3)

Thank you so much.

DC-8
12-06-2012, 9:42 PM
After listening to the oral arguments in both Peruta v. San Diego and Richards v. Prieto, it is my lay view that the arguments of both of the county counsels were woefully weak and incredibly inadequate.

In particular, the counsel for San Diego County was absolutely pounded by the justices and many flaws in his reasoning for supporting the current licensing policies of Sheriff Gore were exposed.

In both cases it seemed, again only in my lay view, that these Sheriffs are simply trying to secure there rights to issue concealed carry permits to whoever they care about with zero accountability. I'm hoping, and I am actually a little more optimistic now after listening to these arguments, that we have a shot at overturning these policies.

CapS
12-06-2012, 9:50 PM
Actually, the founders knew that government would eventually act to violate the terms set forth in the constitution, which is why they gave us a federal court. The whole point is to use the court to force government back into the narrow channels allowed to them.

Not trying to hijack the thread, but the court arrogated this role to itself, as it
continued to do with other extraconstitutional functions it performs routinely to this day.

:oji:

Cap

hoffmang
12-06-2012, 9:57 PM
Interestingly, I posited that 12031 needed to be facially challenged over a year ago, a position that was met with derision on this forrum. Alan Gura saw the light and in fact stated that the unconstitutional discretion granted to sheriffs actually flows from that statute, and is thereby the cause. just sayin....

Can you please point to any point in any Richards brief where 12031 or its successor was called into question? The state law Mr. Gura challenged is the license section that speaks of "good cause" and "good moral character." It's the issue that San Deigo counsel was trying so hard to push the argument over to in Peruta. Yolo doesn't have that option in Richards.

Further, the panel never called into question whether the state could ban all types of OC - they in fact seemed fine with it.

-Gene

UndesignatedMarksman
12-06-2012, 11:15 PM
Further, the panel never called into question whether the state could ban all types of OC - they in fact seemed fine with it.



Of course. The open carry ban wasn't what was being challenged. If they brought that in, it would muddle what the cases were be about. The cases were challenging their right to carry the only (sort of) legal way left, which was the concealed carry permit route. To bring in if open carry bans were allowed would only serve to derail the conversation.

fizux
12-06-2012, 11:22 PM
So, according to that Prieto lawyer, I can open carry to my hearts content in my own yard, front or back, fence or now fence, and I'll be in compliance?
Did I miss something or was he just spouting off BS in an attempt to deflect from the real issue?

Also, if you want to enter a bar or restaurant, you only need to unload. No mention of the fact that both unloaded open carry and unloaded concealed carry are illegal.

wildhawker
12-07-2012, 12:59 AM
So, according to that Prieto lawyer, I can open carry to my hearts content in my own yard, front or back, fence or now fence, and I'll be in compliance?
Did I miss something or was he just spouting off BS in an attempt to deflect from the real issue?

Yolo counsel literally made stuff up as he went.

-Brandon

wildhawker
12-07-2012, 1:10 AM
Interestingly, I posited that 12031 needed to be facially challenged over a year ago, a position that was met with derision on this forrum.

Does your case challenge the former 12031?

Alan Gura saw the light and in fact stated that the unconstitutional discretion granted to sheriffs actually flows from that statute, and is thereby the cause. just sayin....

Actually, Alan argued his case. Which, of course, doesn't challenge 12031. The sheriffs' discretion flows from 26150 (formerly 12050):

(a) When a person applies for a license to carry a pistol,
revolver, or other firearm capable of being concealed upon the
person, the sheriff of a county may issue a license to that person
upon proof of all of the following:
(1) The applicant is of good moral character.
(2) Good cause exists for issuance of the license.

Just sayin...

-Brandon

MOA1
12-07-2012, 1:55 AM
What is the point of registering or listing the firearm you intend to carry?

Look, you gave me a permit, you either trust my judgement or you don't. What does it matter the one I chose to carry each day.
This is just more burden for the citizen to carry just to exercise his 2A right.

Give me the permit, I'll carry what I feel like I need to carry for the day. Do I need to list ever gun I may carry? Ridiculous!

I carried for 16 years, never an issue, never any requirement to carry a specific gun. Never a problem. Excessive regulation.




.

OleCuss
12-07-2012, 2:50 AM
Understand that I agree with you that they needn't know what I carry. What's more, I don't think you should have to have a permit to carry at all. If you aren't prohibited you should be able to carry.

But there is a certain logic to identifying what you carry. If the sheriff sees that you are planning to carry a .50 caliber handgun he's probably gonna figure you've got a screw loose since they're just generally not a great self-defense weapon.

I'm not saying that justifies the requirement. But I remember being told a few years ago that if I tried to apply for a carry license and listed a .44 Magnum or .50 caliber pistol that my application would probably be denied.

choprzrul
12-07-2012, 5:11 AM
Understand that I agree with you that they needn't know what I carry. What's more, I don't think you should have to have a permit to carry at all. If you aren't prohibited you should be able to carry.

But there is a certain logic to identifying what you carry. If the sheriff sees that you are planning to carry a .50 caliber handgun he's probably gonna figure you've got a screw loose since they're just generally not a great self-defense weapon.

I'm not saying that justifies the requirement. But I remember being told a few years ago that if I tried to apply for a carry license and listed a .44 Magnum or .50 caliber pistol that my application would probably be denied.


To me, this whole concept goes right back to what is being challenged in yesterday's cases. The sheriff should NOT be able to qualify/disqualify based on his/her 'feeling' that a particular firearm is/is not appropriate. Further, establishing arbitrary numbers of firearms that can be listed isn't supported in PC and needs kicked to the curb.

In a nutshell, the sheriff's only discretion should be to decide whether or not an applicant is permitted to own/purchase firearms. If that is true, the sheriff is mandated to issue a permit IMHO.

.

Mulay El Raisuli
12-07-2012, 6:18 AM
Sometimes they are, sometimes not.

Could be as soon as tomorrow or Monday if it becomes available.


Any idea as to when text versions might become available?


The Raisuli

Jason_2111
12-07-2012, 7:09 AM
I'm hoping they release the video version today... that way I can show my wife where DarkSoul and I kept mouthing the words "DAFUQ?" when some of the opposing counsel's arguments were completely detached from reality.

mag360
12-07-2012, 8:02 AM
Yolo Counsel says I can LOC to the range and back!

HowardW56
12-07-2012, 8:26 AM
Yolo Counsel says I can LOC to the range and back!


And if you get caught, I bet you get arrested..... :o

1859sharps
12-07-2012, 10:21 AM
Halbrook is an excellent 2A scholar. He's also a excellent 10A/Commerce Clause litigator. He is not an excellent 2A litigator, and we don't need "good". We need excellent. Period.

Halbrook has his place and role, Gura has his place and role.

NRA rocks in legislative actions. they need to get out of the court room in most cases and focus on working with those who right the laws.

Halbrook rocks at research and writing books....that is his contribution. Documenting the history, the reasons why etc the 2nd is not just a "cool idea" BUT a CRITICAL part of being free.

Gura rocks in the court rooms. that is his contribution.

It's not really a problem if people just stick to what they excel at. it actually makes us stronger.

It's the playing in pools you aren't trained to swim in that is a problem NO MATTER how well intentioned. We aren't going to win on good intentions. We are going to win by putting the right people in the right places and supporting them so that they are able to EXCEL at what they do best.

I have actually seen a lot of complaints about egos in a few threads lately. irony is a lot of the complaints are from people who are supporting people in over their heads due to....ego.

the sad truth is very, very few people can put aside ego and focus on the end goal. but that is exactly what we need to do. put aside delusions of grandeur and let the most qualified lead the charge in their area. IF you think you have what it takes to pickup the torch after them...find out how you can start working WITH that person and LEARNING from them. Because at some point as great a job as Gura has been for us, there will reach a time when he will need to step aside and let the next "wave" take over.

That is what people like Halbrook needs to do for Gura. they had their day and in their day they did good work, but their day is past. Some day Gura will need to do this for someone else.

Ideally we should be attacking the "restoration" of the 2nd amendment on three fronts. For illustration only...it could (should?) look like this

Gura coordinating litigation

NRA coordinating legislation

Someone else coordinating and training "average joes" how to talk to people and get them on board. both gun owners and non gun owners.

wildhawker
12-07-2012, 10:28 AM
NRA rocks in legislative actions.

Perhaps; how much legislation has $250Mil/yr gotten you?

-Brandon

ripcurlksm
12-07-2012, 10:35 AM
I have actually seen a lot of complaints about egos in a few threads lately. irony is a lot of the complaints are from people who are supporting people in over their heads due to....ego.

:clap:

Ryan_D
12-07-2012, 1:24 PM
I've listened to the audio of the arguments. Please understand that I do not wish to cast stones at anyone. Certainly Mr. Gura has been a rock star on 2A related issues. However, what were the team's impressions of the panel's position toward Gura's arguments? I too noticed that Yolo counsel seemed to be obfuscating around the edges about the "exceptions" for carrying. One of the things that I also noticed, which the Panel jumped on and Mr. Gura seemed to later assert as well is Yolo's left-handed admission that a core right to self-defense exists. Did the Panel seem to be amenable to accepting that premise? It seemed as though they realized that if a right to self-defense existed, that they would be strongly compelled to find that the Yolo Sheriff was burdening that right. Something I didn't hear, but do wonder if it might have helped our case is a brief recitation of SCOTUS ruling periodically even as far back as the 1950s that the "government" and "the police" are under no statutory duty to provide protection, safety, or security to members of society, and are not legally or financially liable for failing to do so. Would this have helped our case asserting a right to self-defense to make these rulings part of the oral arguments, or is this information additionally contained in briefs filed with the court, but not part of the oral arguments for the sake of expediency? Even if that is so, I would have liked to hear that point made during oral arguments. Again, not trying to denigrate or second-guess anyone, just legitimate questions I have/had and was hoping someone could provide a bit of information about. I admit that while I like our position and Mr. Gura's ability, I'm not altogether confident that the 9th Circus will see things "our" way...

curtisfong
12-07-2012, 4:12 PM
Something I didn't hear, but do wonder if it might have helped our case is a brief recitation of SCOTUS ruling periodically even as far back as the 1950s that the "government" and "the police" are under no statutory duty to provide protection, safety, or security to members of society, and are not legally or financially liable for failing to do so.

I really wish this was the case. I can only assume Gura is aware of it, but finds it strategically unnecessary to bring up.