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View Full Version : Peņa v. Cid - Likely Outcome?


mikestesting
12-13-2012, 2:02 PM
Do we have a strong case in Peņa v. Cid (Safe Handgun Roster)? Also, what's the latest status on this case? The Calguns wiki shows a pre-trial conference set for Aug 2012.

stix213
12-13-2012, 2:17 PM
Do we have a strong case in Peņa v. Cid (Safe Handgun Roster)? Also, what's the latest status on this case? The Calguns wiki shows a pre-trial conference set for Aug 2012.

Our side wouldn't have filed it if we didn't think our arguments could hold water.

HowardW56
12-13-2012, 2:39 PM
The likely outcome is a trip to the 9th Circuit, regardless who prevails...

Bhobbs
12-13-2012, 2:47 PM
My predictions are we either
A) Have a long wait to SCOTUS and win.
B) Have a long wait to SCOTUS and lose.

curtisfong
12-13-2012, 2:52 PM
All 9th circuit cases will be lost up until the 9th circuit decides them.

Our only win will be SCOTUS.

Tincon
12-13-2012, 5:17 PM
My predictions are we either
A) Have a long wait to SCOTUS and win.
B) Have a long wait to SCOTUS and lose.

Add:

C) Cert is denied by SCOTUS and the 9th Circuit ruling stands.

This is by far the most likely scenario. By the time that happens however I expect we will have some additional SCOTUS precedent to further guide the 9th Circuit.

taperxz
12-13-2012, 5:56 PM
Add:

C) Cert is denied by SCOTUS and the 9th Circuit ruling stands.

This is by far the most likely scenario. By the time that happens however I expect we will have some additional SCOTUS precedent to further guide the 9th Circuit.

Not sure where you get this. The Ninth is the most over turned court in the country and i believe the SCOTUS enjoys it.

Bhobbs
12-13-2012, 6:04 PM
Add:

C) Cert is denied by SCOTUS and the 9th Circuit ruling stands.

This is by far the most likely scenario. By the time that happens however I expect we will have some additional SCOTUS precedent to further guide the 9th Circuit.

I don't see why the SCOTUS would deny cert. Laws like the roster and AWB have no foundation in reality and should be dealt with.

Tincon
12-13-2012, 6:10 PM
Not sure where you get this. The Ninth is the most over turned court in the country and i believe the SCOTUS enjoys it.

The Supreme Court hears 80-100 cases each year from all twelve of the United States courts of appeals over which it exercises appellate jurisdiction. The 9th Circuit alone has about 13500 cases which reach final adjudication each year. So I get that from doing math (admittedly not my strong suit, but this is simple division).

wildhawker
12-13-2012, 6:12 PM
Perhaps the Court will seek a circuit split first before taking a case like Peņa. We'll know when we get there.

-Brandon

Tincon
12-13-2012, 6:12 PM
I don't see why the SCOTUS would deny cert. Laws like the roster and AWB have no foundation in reality and should be dealt with.

Since McDonald v. Chicago do you know how many cases have been granted cert? Denied?

Tincon
12-13-2012, 6:15 PM
Perhaps the Court will seek a circuit split first before taking a case like Peņa. We'll know when we get there.

-Brandon

I'm not sure what you mean by this. Given the ruling earlier this week in the 7th, an unfavorable ruling in Peņa, if it happened tomorrow, would actually cause a circuit split. Of course there are cases much further ahead in the pipe, but I'm still not sure I get your point.

Bhobbs
12-13-2012, 6:17 PM
Since McDonald v. Chicago do you know how many cases have been granted cert? Denied?

No but I believe cases like Pena should be addressed as to what constitutes a reasonable limitation.

Tincon
12-13-2012, 6:22 PM
No but I believe cases like Pena should be addressed as to what constitutes a reasonable limitation.

So do I, and likely so does the Court. They have however not yet seen fit to grant cert to any such case, and in fact they have repeatedly denied it. My guess is they are waiting for the right case, or for a circuit split, and something will be granted very soon. Probably before Peņa reaches that stage. So by the time Peņa comes along we will have a standard, or will be waiting for a ruling, and cert won't be granted unless the 9th fails to follow that standard.

dantodd
12-13-2012, 6:24 PM
I'm not sure what you mean by this. Given the ruling earlier this week in the 7th, an unfavorable ruling in Peņa, if it happened tomorrow, would actually cause a circuit split. Of course there are cases much further ahead in the pipe, but I'm still not sure I get your point.

What does the ruling in Moore v. Madigan have to do with Pena?

taperxz
12-13-2012, 6:26 PM
The Supreme Court hears 80-100 cases each year from all twelve of the United States courts of appeals over which it exercises appellate jurisdiction. The 9th Circuit alone has about 13500 cases which reach final adjudication each year. So I get that from doing math (admittedly not my strong suit, but this is simple division).

Interesting!

As the nation's biggest circuit, representing most of the western United States, it should come as no surprise that the 9th Circuit has more cases heard before the Supreme Court than any other jurisdiction -- in turn resulting in more reversals. But the latest string of rulings is unusual even for the 9th, which often is at odds with conservatives on the Supreme Court. The fact that the rulings were unanimous can be seen as a signal from on high that the circuit needs to get in line.

Read more: http://www.foxnews.com/politics/2011/02/02/hint-supreme-court-rejects-rulings-row-west-coast-bench/#ixzz2EzOLhbDd

Bhobbs
12-13-2012, 6:34 PM
So do I, and likely so does the Court. They have however not yet seen fit to grant cert to any such case, and in fact they have repeatedly denied it. My guess is they are waiting for the right case, or for a circuit split, and something will be granted very soon. Probably before Peņa reaches that stage. So by the time Peņa comes along we will have a standard, or will be waiting for a ruling, and cert won't be granted unless the 9th fails to follow that standard.

Have any cases such as Pena made it to the SCOTUS and were denied cert?

Tincon
12-13-2012, 6:35 PM
What does the ruling in Moore v. Madigan have to do with Pena?

It is the first Circuit Court opinion, post-McDonald, which extends the individual second amendment right significantly beyond what was clearly established in Heller. That means that a case proceeding now to another circuit (like ours) must either rule the same way, or create a split. SCOTUS doesn't like splits, and so such an event would make cert much more likely.

Interesting!

It's true that as much of a third of cases SCOTUS may grant cert to can come from the 9th, but that probably has more to do with the sheer number of cases the 9th hears. In any event 20-30 cases is still a lot less than 13,500.

Have any cases such as Pena made it to the SCOTUS and were denied cert?

Yes, quite a few actually.

wildhawker
12-13-2012, 6:36 PM
I'm not sure what you mean by this. Given the ruling earlier this week in the 7th, an unfavorable ruling in Peņa, if it happened tomorrow, would actually cause a circuit split. Of course there are cases much further ahead in the pipe, but I'm still not sure I get your point.

We already have something of a split on bear. I was referring to a split on per se handgun bans as shown in e.g. Peņa.

-Brandon

Bhobbs
12-13-2012, 6:38 PM
It is the first Circuit Court opinion, post-McDonald, which extends the individual second amendment right significantly beyond what was clearly established in Heller. That means that a case proceeding now to another circuit (like ours) must either rule the same way, or create a split. SCOTUS doesn't like splits, and so such an event would make cert much more likely.



It's true that as much of a third of cases SCOTUS may grant cert to can come from the 9th, but that probably has more to do with the sheer number of cases the 9th hears. In any event 20-30 cases is still a lot less than 13,500.



Yes, quite a few actually.

After McDonald? Which cases?

taperxz
12-13-2012, 6:40 PM
After McDonald? Which cases?

YES! this could be an interesting answer.

Tincon
12-13-2012, 6:41 PM
After McDonald? Which cases?

http://bit.ly/SXY20s

taperxz
12-13-2012, 6:45 PM
Have any cases such as Pena made it to the SCOTUS and were denied cert?

After McDonald? Which cases?

http://bit.ly/SXY20s

Lets clarify.

Fatgunman
12-13-2012, 6:46 PM
Has any heard a current status report? The last I heard something it was 08/2012.

Bhobbs
12-13-2012, 6:49 PM
http://bit.ly/SXY20s

http://www.ammoland.com/2012/01/24/us-supreme-court-declines-to-review-more-second-amendment-decisions/#axzz2EzTsBYIR

The ones listed here are all cases involving criminal convictions. I think those ones will lose for a while.

Pena, AFAIK, is not a criminal case. I think that will be a huge difference when it comes to SCOTUS agreeing to hear it or not.

Tincon
12-13-2012, 6:52 PM
Well you and Brandon are drawing a distinction I don't think exists as a practical matter. SCOTUS will need to develop some sort of test or level of scrutiny to apply to 2A issues. You can't expect SCOTUS to rule on each and every possible facet of 2A laws and potential regulations, and SCOTUS (in theory) wants to minimize the cases that need to be adjudicated by the courts and make it easier to understand where the line is.

So again, I think the most likely result is that the outcome of Peņa is determined by some other SCOTUS case long before the cert process begins, and I don't think cert will ever be granted.

taperxz
12-13-2012, 6:57 PM
Well you and Brandon are drawing a distinction I don't think exists as a practical matter. SCOTUS will need to develop some sort of test or level of scrutiny to apply to 2A issues. You can't expect SCOTUS to rule on each and every possible facet of 2A laws and potential regulations, and SCOTUS (in theory) wants to minimize the cases that need to be adjudicated by the courts and make it easier to understand where the line is.

So again, I think the most likely result is that the outcome of Peņa is determined by some other SCOTUS case long before the cert process begins, and I don't think cert will ever be granted.

With all the talk about banning AW's in this country, i beg to differ. It may actually be very important to get this off the calendar sooner than later. Otherwise the SCOTUS will end up with 50 of these cases to determine what is worth hearing and what is not.

Tincon
12-13-2012, 7:03 PM
With all the talk about banning AW's in this country, i beg to differ. It may actually be very important to get this off the calendar sooner than later. Otherwise the SCOTUS will end up with 50 of these cases to determine what is worth hearing and what is not.

Right, you are actually making the very point I'm trying to make, so I think there must be some miscommunication. SCOTUS will want to resolve a split. This will occur long before Peņa gets there, and Peņa likely isn't the case to resolve the split anyway. The case that resolves the split will however likely address the issues involved in an AW ban, and possibly the issues involved in Peņa. Even if it doesn't the chances of Peņa being granted are very small, because the chances of ANY case being granted cert are very small.

wildhawker
12-13-2012, 7:04 PM
Obviously I disagree with you inasmuch that many or all of the carry cases can be decided without reaching a "level" of scrutiny (much as Heller was in 2008).

I would further argue that the circuits (and probably SCOTUS) will likely make the distinction you don't think exists.

I do agree that SCOTUS is likely to not take most 2A cases and will look to the circuits to resolve the law - until they don't correctly, or disagree with each other.

-Brandon

Well you and Brandon are drawing a distinction I don't think exists as a practical matter. SCOTUS will need to develop some sort of test or level of scrutiny to apply to 2A issues. You can't expect SCOTUS to rule on each and every possible facet of 2A laws and potential regulations, and SCOTUS (in theory) wants to minimize the cases that need to be adjudicated by the courts and make it easier to understand where the line is.

So again, I think the most likely result is that the outcome of Peņa is determined by some other SCOTUS case long before the cert process begins, and I don't think cert will ever be granted.

taperxz
12-13-2012, 7:05 PM
I see what you mean.

Tincon
12-13-2012, 7:13 PM
Obviously I disagree with you inasmuch that many or all of the carry cases can be decided without reaching a "level" of scrutiny (much as Heller was in 2008).

I would further argue that the circuits (and probably SCOTUS) will likely make the distinction you don't think exists.

I do agree that SCOTUS is likely to not take most 2A cases and will look to the circuits to resolve the law - until they don't correctly, or disagree with each other.

-Brandon

I think Heller is different in that SCOTUS wants to see how things play out under an individual right before setting a standard. I can certainly see how the carry cases could be resolved without setting a standard, however looking at the larger picture of SCOTUS opinions I don't think it will happen that way.

It's going to be difficult to make that distinction without creating a very squishy rule that will spawn hundreds, if not thousands, of cases every year. I can certainly see circuits attempting to do that to avoid increasing the extent of the 2A right, but I can hardly see SCOTUS doing the same. If they had that in mind, then there would be no reason to take any case, they could just leave things as they are. Generally however the justices like to reduce chaos, not increase it.

Gunlawyer
12-13-2012, 7:24 PM
Well you and Brandon are drawing a distinction I don't think exists as a practical matter. SCOTUS will need to develop some sort of test or level of scrutiny to apply to 2A issues. You can't expect SCOTUS to rule on each and every possible facet of 2A laws and potential regulations, and SCOTUS (in theory) wants to minimize the cases that need to be adjudicated by the courts and make it easier to understand where the line is.

So again, I think the most likely result is that the outcome of Peņa is determined by some other SCOTUS case long before the cert process begins, and I don't think cert will ever be granted.

I agree that the next big SCOTUS case will likely decide scrutiny (since its a fundamental right like free speech in 1a it should be strict scrutiny that would be a windfall and huge huge huge huge did I say huge if they did) and/or what 2a rights extend outside the home ( although arguably this was decided by SCOTUS as articulated in the recent opinion of moore v madigan (http://ia600603.us.archive.org/14/items/gov.uscourts.ilcd.52015/gov.uscourts.ilcd.52015.docket.html).

BRoss
12-13-2012, 7:50 PM
Not sure where you get this. The Ninth is the most over turned court in the country and i believe the SCOTUS enjoys it.


According to the latest issue of ABA Journal, the Sixth Circuit now holds that honor.


http://www.abajournal.com/magazine/article/a_sixth_sense_6th_circuit_has_surpassed_the_9th_as _the_most_reversed_appeal/

Purple K
12-13-2012, 8:11 PM
I see a favorable outcome for us in Pena v Cid. The District of Columbia adopted a virtual carbon copy of California's law. DC's law has already been stricken as unconstitutional...

dantodd
12-13-2012, 8:47 PM
I see a favorable outcome for us in Pena v Cid. The District of Columbia adopted a virtual carbon copy of California's law. DC's law has already been stricken as unconstitutional...

My understanding is the D.C. Mooted the case by changing their roster law. Sad too because if we had been able to have it legally quashed by the D.C. Circuit it would have been persuasive in the 9th and, as you said, D.C. Roster was in many ways a carbon copy of ours.

Bhobbs
12-13-2012, 8:58 PM
I see a favorable outcome for us in Pena v Cid. The District of Columbia adopted a virtual carbon copy of California's law. DC's law has already been stricken as unconstitutional...

What case was that? I know of Hanson vs DC but DC changed the laws to moot the case.

kcbrown
12-13-2012, 9:25 PM
Perhaps the Court will seek a circuit split first before taking a case like Peņa. We'll know when we get there.


How can we get such a split if there are no other jurisdictions in the country that have a roster? Do such jurisdictions exist?

To get a split, there has to be a case to split against, one that asks the same basic question as the other case...

kg6hum
12-14-2012, 5:09 PM
How can we get such a split if there are no other jurisdictions in the country that have a roster? Do such jurisdictions exist?

To get a split, there has to be a case to split against, one that asks the same basic question as the other case...

I believe both Maryland and Massachusetts have a handgun roster similar to ours.

http://msp.maryland.gov/Organization/SupportServicesBureau/LicensingDivision/HandgunRoster.aspx

http://www.mass.gov/eopss/firearms-reg-and-laws/frb/approved-rosters/