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ABarvir
04-03-2013, 3:39 PM
[[ Original Calguns thread on the case here - http://www.calguns.net/calgunforum/showthread.php?t=490930

// Librarian ]]

Yesterday, our office filed an amicus brief in Calguns Foundation v. County of San Mateo. This afternoon, our office will be releasing the following alert via www.calgunlaws.com (http://www.calgunlaws.com/). Links to the brief and relevant documents are available in the alert. The full alert is available here (http://www.calgunlaws.com/nra-files-amicus-brief-in-case-challenging-ban-on-firearms-in-parks/).

NRA Files Amicus Brief in Case Challenging Ban on Firearms in Parks

On April 2, 2012, the National Rifle Association (http://home.nra.org/#/nraorg) (NRA) through their attorneys at Michel & Associates, P.C. (http://michellawyers.com/), weighed in on the state preemption case of Calguns Foundation, Inc. v. County of San Mateo (http://michellawyers.com/calguns-foundation-v-county-of-san-mateo/). The case is now before the California Court of Appeal. If the appellate court upholds the trial court’s ruling against the plaintiffs (http://michellawyers.com/wp-content/uploads/2012/07/Calguns-Foundation-v.-County-of-San-Mateo_Order-Sustaining-Demurrer.pdf), the case could set bad precedent for future cases challenging local regulation of firearm possession on legal preemption grounds.

The Calguns Foundation (CGF) case challenges a San Mateo County ordinance that bans the possession of firearms in county parks and recreation areas, without providing an exception for people licensed to carry handguns in public. Specifically, the lawsuit alleges that Government Code section 53071, as interpreted in the favorable opinion achieved by the NRA in Fiscal v. City and County of San Francisco (http://www.calgunlaws.com/wp-content/uploads/2012/07/Opinion-Fiscal-v.-City-and-County-of-San-Francisco.pdf), “preempts” local ordinances and prevents local governments from passing ordinances that interfere with the authority granted by state-issued licenses authorizing the carrying of handguns in public (“carry licenses”).

The NRA’s amicus curiae (“friend-of-the-court”) brief (http://michellawyers.com/wp-content/uploads/2012/07/Calguns-Foundation-v.-San-Mateo_Application-of-National-Rifle-Association-to-File-Amicus-Curiae-Brief-Proposed-Amicus-Curiae-Brief-In-Support-of-Appellants-Calguns-Foundation-Inc..pdf) presents the court with two preemption arguments that were not raised by the parties, through which the court should find that the county ordinance is preempted and void. The NRA brief argues primarily that because the ordinance prohibits holders of carry licenses from carrying a firearm pursuant to their valid, state- issued-and-regulated license while in certain areas (i.e. parks), it contradicts with state law and so is preempted.

The NRA brief also argues that the state implicitly occupies the entire legal field of regulating carry licensing and regulation, to the exclusion of further local regulation. CGF conceded the “implied preemption” argument in its briefs. The NRA’s brief seeks to resurrect that valid preemption argument.

In 2008, the NRA and attorneys at Michel & Associates, P.C. (http://michellawyers.com/), brought a preemption challenge to San Francisco’s Proposition H, which banned handgun possession entirely and banned the manufacture, distribution, and sale of firearms and ammunition within San Francisco. That court victory in the Fiscal (http://www.calgunlaws.com/wp-content/uploads/2012/07/Opinion-Fiscal-v.-City-and-County-of-San-Francisco.pdf) case established valuable legal precedent and set the stage for other preemption lawsuits. The Fiscal (http://www.calgunlaws.com/wp-content/uploads/2012/07/Opinion-Fiscal-v.-City-and-County-of-San-Francisco.pdf)decision was relied on heavily by CGF’s attorneys in their briefs.

Copies of the court filings in Calguns Foundation, Inc. v. County of San Mateo can be viewed here (http://michellawyers.com/calguns-foundation-v-county-of-san-mateo/).

Chewbaca
04-03-2013, 4:21 PM
there is a shooting range at coyote point park ! so can you not have your gun now while at the shooting range ???

taperxz
04-03-2013, 7:38 PM
I can't find one legal reason why CGF and Gene could lose this case.

Raystonn
04-03-2013, 7:54 PM
I can. California judges are legally insane.

mud99
04-03-2013, 10:54 PM
there is a shooting range at coyote point park ! so can you not have your gun now while at the shooting range ???

I'm not sure if it is technically inside the park. The attendant does not charge you admission if you are going to the range.

hoffmang
04-14-2013, 8:28 PM
I can. California judges are legally insane.

This. But remember this is a case that has a "Plan B." waiting right behind it quite intentionally.

-Gene

Tincon
04-14-2013, 10:11 PM
This. But remember this is a case that has a "Plan B." waiting right behind it quite intentionally.

-Gene

Does it really make sense for the Chairman of a foundation involved in litigation to refer to the judiciary as "insane" in a public forum? :facepalm:

Wrangler John
04-15-2013, 6:44 AM
I'm not sure if it is technically inside the park. The attendant does not charge you admission if you are going to the range.

Yes it is, the facilities and land are owned by the County. They never charged park admission for range users. I was a County Ranger from 1973 to 2005, including 2 assignments at the range.

Sutcliffe
04-15-2013, 8:11 AM
This. But remember this is a case that has a "Plan B." waiting right behind it quite intentionally.

-Gene

It's chess we are talking here.

Tincon
04-15-2013, 11:09 AM
It's chess we are talking here.

Maybe the Plan B is actually addressing the contradiction with state carry permit law? I really can't imagine why CGF failed to do that. Then again I also can't imagine what they were thinking in conceding on implied preemption, which is probably the best argument they have. Not just failing to argue it, but conceding it for absolutely no reason.

If this is chess, CGF likes to sacrifice the king.

Tincon
04-27-2013, 10:16 AM
Considering how important various CGF personalities have made oral argument out to be, it's interesting that CGF's attorney blew the deadline for filing to request oral argument by nearly two weeks. :twoweeks:

I can't wait to hear what the excuse for this blunder is, or how it is actually part of some super-secret strategy.

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2021275&doc_no=A136092

taperxz
04-27-2013, 2:33 PM
This is an intriguing case and would also like to hear more of the situation.

How are things progressing?

TBX
04-27-2013, 2:59 PM
This is an intriguing case and would also like to hear more of the situation.

How are things progressing?

Me too! I live in Sacramento County and will be keeping an eye on this.

CMonfort
04-30-2013, 2:05 PM
Depending on whether the Court grant's CGF's motion requesting oral argument, our office may request participation in oral arguments as well.

wildhawker
04-30-2013, 4:58 PM
We'll be writing more on this soon, but the bottom line is that this really is a simple case. Govt. Code and Fiscal either mean what they say or they do not.

-Brandon

Considering how important various CGF personalities have made oral argument out to be, it's interesting that CGF's attorney blew the deadline for filing to request oral argument by nearly two weeks. :twoweeks:

I can't wait to hear what the excuse for this blunder is, or how it is actually part of some super-secret strategy.

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2021275&doc_no=A136092

Tincon
04-30-2013, 5:10 PM
We'll be writing more on this soon, but the bottom line is that this really is a simple case. Govt. Code and Fiscal either mean what they say or they do not.

-Brandon

So, if oral argument was so unimportant, why file a request nearly two weeks late?

Raystonn
04-30-2013, 5:18 PM
For the element of surprise. They certainly weren't expecting that! To be honest though, I make mistakes too. If this was a mistake, I understand. Nobody is perfect, except for Glocks according to their slogan.

wildhawker
04-30-2013, 5:23 PM
So, if oral argument was so unimportant, why file a request nearly two weeks late?

After NRA filed its amicus brief and said it was going to request oral argument, we filed a motion to withdraw our waiver.

-Brandon

Tincon
04-30-2013, 5:23 PM
For the element of surprise. They certainly weren't expecting that! To be honest though, I make mistakes too. If this was a mistake, I understand. Nobody is perfect, except for Glocks according to their slogan.

Certainly true, but it also shows some character to admit them rather than blaming others and making excuses.

After NRA filed its amicus brief and said it was going to request oral argument, we filed a motion to withdraw our waiver.

-Brandon

What "waiver" are you referring to? Can you provide a copy?

wildhawker
04-30-2013, 5:28 PM
What "waiver" are you referring to? Can you provide a copy?

Good lord, Matt. Is there a reason to be so antagonistic all the time?

But, on point, I suspect that the waiver was of a constructive nature.

-Brandon

taperxz
04-30-2013, 5:37 PM
Perhaps Michel and Associates have a good idea and CGF agrees with it?

Regardless, its all about the win.

Tincon
04-30-2013, 5:46 PM
Good lord, Matt. Is there a reason to be so antagonistic all the time?

But, on point, I suspect that the waiver was of a constructive nature.

-Brandon

Hey, I'm just trying to understand, you said there was a motion to "withdraw a waiver", I've never heard of a waiver like that, so I was curious to see it. Guess it doesn't exist huh? It it even remotely possible that your counsel simply forgot to file the request for oral argument?

Those who Waive Oral Arguments at the Court of Appeal in 2A Cases:

Gary Gorski

Charles Nichols

CGF’s lawyers in this case

Those who Don’t:

Paul Clement

Chuck Michel

Charles Cooper

gomatty
04-30-2013, 6:11 PM
@Tincon

Did you get picked last for the CGN dodgeball game or something? In all seriousness, the way you approach just about every announcement or topic on this forum ruins any discussion for the rest of us. We have to wade through your antagonistic commentary not because there is some big scandal but because it seems like you have something to prove. While some of your criticisms and opinions are poignant and relevant, your delivery is rude at best. You remind me of someone like Alex Jones in a way. We all have heard him say something right on point but instead of jumping up and down in support you keep it inside because you cringe at the thought of what he's going to say next. I think you'd be much more effective and appreciated with an adjustment of your delivery. TIFWIW.

Tincon
04-30-2013, 6:19 PM
Ok, but when Gene Hoffman accuses people of malpractice (without any justification) that's cool right? And when Josh Berger randomly accuses people of breach of fiduciary duty (without any justification) that's cool too right? But if I ask questions about why CGF attorneys are conceding their best arguments and forgetting something as simple as requesting oral argument, on cases that impact THE CONTINUED EXISTENCE OF OUR RIGHT TO BEAR ARMS, I'm not being nice enough? This isn't about me being resentful against some past CGF slight, it is about CGF continuing to screw up RKBA litigation, and continuing with a pattern of denial and external blame.

wildhawker
04-30-2013, 6:38 PM
"Best", I suppose, is a subjective analysis and one that requires the benefit of hindsight. Perhaps you're less confident of Fiscal and express preemption. In any case, the same argument about "best" could be said of the DROS fees case, but there's no need to argue it here or anywhere. Both cases have been filed, plaintiffs in both have selected their theories, and both aren't deviating from their approach despite what might be said on Calguns net. So, perhaps more energy could be spent on more productive matters than judging and nitpicking cases prospectively. There was only one reason that the amicus press release was so openly hostile.

At what point will enough blood be let such that hatchets can be buried? How many pounds of flesh is required, or is this like a family law case where only ultimate and mutual destruction is sufficient?

-Brandon

taperxz
04-30-2013, 7:21 PM
"Best", I suppose, is a subjective analysis and one that requires the benefit of hindsight. Perhaps you're less confident of Fiscal and express preemption. In any case, the same argument about "best" could be said of the DROS fees case, but there's no need to argue it here or anywhere. Both cases have been filed, plaintiffs in both have selected their theories, and both aren't deviating from their approach despite what might be said on Calguns net. So, perhaps more energy could be spent on more productive matters than judging and nitpicking cases prospectively. There was only one reason that the amicus press release was so openly hostile.

At what point will enough blood be let such that hatchets can be buried? How many pounds of flesh is required, or is this like a family law case where only ultimate and mutual destruction is sufficient?

-Brandon

You know Brandon, I Kinda agree with you. However, some of you guys at CGF were the biggest flame throwing, back stabbing, hypocrites when people just wanted to ask questions.

If someone asked a question about CGF, the flames just erupted out of that corner here on CGN. Perhaps the healing could start from the CGF corner? Just sayin....

Tincon
04-30-2013, 7:32 PM
"Best", I suppose, is a subjective analysis and one that requires the benefit of hindsight. Perhaps you're less confident of Fiscal and express preemption. In any case, the same argument about "best" could be said of the DROS fees case, but there's no need to argue it here or anywhere. Both cases have been filed, plaintiffs in both have selected their theories, and both aren't deviating from their approach despite what might be said on Calguns net. So, perhaps more energy could be spent on more productive matters than judging and nitpicking cases prospectively. There was only one reason that the amicus press release was so openly hostile.

At what point will enough blood be let such that hatchets can be buried? How many pounds of flesh is required, or is this like a family law case where only ultimate and mutual destruction is sufficient?

-Brandon

Please stop trying to make this into something personal. What I'm asking isn't to be your friend, not am I saying you are a bad person. What would like is some answers on the issues you are trying to side-step.

Why did CGF EXPRESSLY CONCEDE the argument, regardless of whether you think it was the best or not. How does unilaterally conceding an argument help your case? Particularly one that may well be the ONLY viable way to challenge other gun laws in the short term? Do you not see the problem there?

You also ignored my question about failing to file the proper request for oral argument ... are you really saying you waived argument intentionally? Or can you admit you just missed the deadline?

I also find your supposed contrition, particularly when it is clearly born of embarrassment, a little hard to swallow at this stage in the game. Let's just stick to the issues and maybe we can make some progress.

bussda
04-30-2013, 7:43 PM
@Tincon

Did you get picked last for the CGN dodgeball game or something? In all seriousness, the way you approach just about every announcement or topic on this forum ruins any discussion for the rest of us. We have to wade through your antagonistic commentary not because there is some big scandal but because it seems like you have something to prove. While some of your criticisms and opinions are poignant and relevant, your delivery is rude at best. You remind me of someone like Alex Jones in a way. We all have heard him say something right on point but instead of jumping up and down in support you keep it inside because you cringe at the thought of what he's going to say next. I think you'd be much more effective and appreciated with an adjustment of your delivery. TIFWIW.

Ok, but when Gene Hoffman accuses people of malpractice (without any justification) that's cool right? And when Josh Berger randomly accuses people of breach of fiduciary duty (without any justification) that's cool too right? But if I ask questions about why CGF attorneys are conceding their best arguments and forgetting something as simple as requesting oral argument, on cases that impact THE CONTINUED EXISTENCE OF OUR RIGHT TO BEAR ARMS, I'm not being nice enough? This isn't about me being resentful against some past CGF slight, it is about CGF continuing to screw up RKBA litigation, and continuing with a pattern of denial and external blame.

If one understands that Tincon is throwing matter to see what sticks, the logic is perfect. But this thread is about NRA/M&A (His heroes) in support of CGF (Evil Incarnate and associates with Satan) suit and still he bashes CGF.

The only beneficiary of CGF openly explaining their strategy is to the adversaries. Which has been stated repeatedly. And he asks for it in an open forum?

The only people I can think of that would argue that way is certain members of the CRPA crowd who would rather CGF fail no matter what the cost.

wildhawker
04-30-2013, 7:44 PM
Please stop trying to make this into something personal. What I'm asking isn't to be your friend, not am I saying you are a bad person. What would like is some answers on the issues you are trying to side-step.

What answer are you still looking for?

Why did CGF EXPRESSLY CONCEDE the argument, regardless of whether you think it was the best or not. How does unilaterally conceding an argument help your case? Particularly one that may well be the ONLY viable way to challenge other gun laws in the short term?

Why did Alan ask the D.C. District Court if the Second Amendment expressly protected an individual right, and, if it did, if the D.C. ordinances were unlawful?

You have to ask the question to get the answer.

Do you not see the problem there?

I see a disagreement on strategy, but I don't see what the attacks in this thread -- and they are attacks -- are productive. You and I both know that the ship has sailed. So what is your goal here?

You also ignored my question about failing to file the proper request for oral argument ... are you really saying you waived argument intentionally? Or can you admit you just missed the deadline?

I'm willing to admit the truth - we purposefully did not ask for arguments until NRA filed its brief.

I also find your supposed contrition, particularly when it is clearly born of embarrassment, a little hard to swallow at this stage in the game. Let's just stick to the issues and maybe we can make some progress.

"Clearly born of embarrassment" is not right, but thanks for continuing to make this personal. I'm offering that, perhaps, we've all missed opportunities to collaborate and achieve something greater. I would like to think there's still a way to see that happen. "Stick to the issues" in the context of your comments sure sounds a lot like "explain every detail of every CGF decision to [your] satisfaction in threads on Calguns.net."

-Brandon

wildhawker
04-30-2013, 7:45 PM
You know Brandon, I Kinda agree with you. However, some of you guys at CGF were the biggest flame throwing, back stabbing, hypocrites when people just wanted to ask questions.

If someone asked a question about CGF, the flames just erupted out of that corner here on CGN. Perhaps the healing could start from the CGF corner? Just sayin....

I hope efforts to that end are of value: http://online.wsj.com/article/PR-CO-20130417-912495.html?mod=googlenews_wsj.

-Brandon

kcbrown
04-30-2013, 7:52 PM
You also ignored my question about failing to file the proper request for oral argument ... are you really saying you waived argument intentionally? Or can you admit you just missed the deadline?


Suppose for the moment that the reason is that the deadline was missed.

What actions do you have in mind to remedy that situation? If none, then what is the purpose of your question?

taperxz
04-30-2013, 7:55 PM
I hope efforts to that end are of value: http://online.wsj.com/article/PR-CO-20130417-912495.html?mod=googlenews_wsj.

-Brandon

Good article ;)

bussda
04-30-2013, 8:03 PM
...
At what point will enough blood be let such that hatchets can be buried? How many pounds of flesh is required, or is this like a family law case where only ultimate and mutual destruction is sufficient?

-Brandon

You know Brandon, I Kinda agree with you. However, some of you guys at CGF were the biggest flame throwing, back stabbing, hypocrites when people just wanted to ask questions.

If someone asked a question about CGF, the flames just erupted out of that corner here on CGN. Perhaps the healing could start from the CGF corner? Just sayin....

Yup! Lots of animosity. But some people are more interested in starting something and/or stirring the pot then letting go and moving on. The people who are against CGF and pro gun (suppposedly) have a big advantage, they only talk and do not write things down.

A big point would be who started this and why. Not to point fingers, but to better understand the animosity.

taperxz
04-30-2013, 8:10 PM
Yup! Lots of animosity. But some people are more interested in starting something and/or stirring the pot then letting go and moving on. The people who are against CGF and pro gun (suppposedly) have a big advantage, they only talk and do not write things down.

A big point would be who started this and why. Not to point fingers, but to better understand the animosity.

You have no idea what you are talking about. None of this should be taken in a personal context. The questioning of a 501 C 3 org has nothing to do with personal agendas.

bussda
04-30-2013, 8:41 PM
You have no idea what you are talking about. None of this should be taken in a personal context. The questioning of a 501 C 3 org has nothing to do with personal agendas.

But if a person has an agenda, and he attacks an organization to diminish it any way possible, it is a personal agenda in action. Example: A felon (tax evasion) runs an org that gives positive results, so the allies and affiliates are attacked to diminish that org because the leader is a felon. Personal agenda: No felons on their side. Only the pure are worthy.

Or a person makes unwise remarks in a forum that is widely read as opposed to being made among friends. Listeners nod in agreement versus openly castigating for a bad example. No intemperate speech allowed.

People are making this personal. They are more important then the end goal.

Tincon
04-30-2013, 8:50 PM
What answer are you still looking for?

Why did Alan ask the D.C. District Court if the Second Amendment expressly protected an individual right, and, if it did, if the D.C. ordinances were unlawful?


What does Gura asking a question have to do with conceding an argument?

There was no reason to expressly concede the argument here, even if he didn’t want to raise it. It is absolutely nothing like asking a question. :facepalm:

So the answer I'm still looking for is: How does unilaterally conceding an argument help your case? Particularly one that may well be the ONLY viable way to challenge other gun laws in the short term?

Also, if "Govt. Code and Fiscal either mean what they say or they do not" then why does the NRA requesting oral change anything?



The reason I'm asking these questions is not because of a personal vendetta of some sort. It is because CGF/counsel are making the same mistakes over and over again. "Those who cannot remember the past are condemned to repeat it." If you can't see why CGF cases keep going off the rails they are going to keep going off the rails. 12 dismissals on the pleadings is a completely unacceptable track record. If you can't see this, then I imagine you will continue to fail to understand the rational behind my questions.

FABIO GETS GOOSED!!!
04-30-2013, 9:15 PM
If I recall correctly, in the trial court the parties submitted on the tentative ruling and didn't appear at the hearing, so waiving oral argument would be consistent with that.

Tincon
05-16-2013, 7:34 AM
:gene:

..
I'm willing to admit the truth - we purposefully did not ask for arguments until NRA filed its brief.

So how did that strategy work out for you?

FABIO GETS GOOSED!!!
07-15-2013, 11:20 AM
Really excited to see "Plan B" now that CGF lost the appeal (http://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=1&doc_id=2021275&doc_no=A136092). The Jedi mind-tricking worked, so what's next?

Crom
07-15-2013, 11:22 AM
Just got the email notification from the court. What went wrong? :rolleyes:

FABIO GETS GOOSED!!!
07-15-2013, 11:36 AM
Just got the email notification from the court. What went wrong? :rolleyes:

Nothing at all apparently, this was the setup for "Plan B."

taperxz
07-15-2013, 12:07 PM
(Signed Unpublished) The judgment of dismissal is affirmed.


So you got em right where you want them. Looking forward to the big "win"

OleCuss
07-15-2013, 12:22 PM
Do they have the option of appealing the dismissal?

Not saying they should try anything like that since I don't have the legal sophistication to know if that would be wise.

FABIO GETS GOOSED!!!
07-15-2013, 2:03 PM
So you got em right where you want them. Looking forward to the big "win"

If they thought they got em right where they wanted them, they were wrong. The appeals court (http://www.courts.ca.gov/opinions/nonpub/A136092.PDF) nuked the "local regulation of possesion on county property must exempt CCW or else it's preempted" argument. The decision is unpublished but its analysis is mainstream (in the initial thread trumpeting the lawsuit its fatal flaws were i.d.'ed, the flaws could be found by doing 5 minutes of basic legal research) and I'd be very suprised if any other state court rules that regulation of firearm possession on county property must exempt CCW. Local regulation can exempt CCW, or not, depending on local interests, and not have a pre-emption problem either way (local regulation can even exempt CCW in one place but not another).

It still kills me (http://www.www.calguns.net/calgunforum/showpost.php?p=8859746&postcount=74) that that this case was filed by the same attorney who handled the Nordyke Cal. Supreme Court litigation. :laugh:

Crom
07-15-2013, 2:39 PM
Fabio,

Off-topic but :rofl2: at your new sig! :D

FABIO GETS GOOSED!!!
07-15-2013, 2:47 PM
Fabio,

Off-topic but :rofl2: at your new sig! :D

It's probably more on-topic than off-topic. CGF had to jettison a plaintiff in this case too lol.

jdberger
07-15-2013, 7:51 PM
Ok, but when Gene Hoffman accuses people of malpractice (without any justification) that's cool right? And when Josh Berger randomly accuses people of breach of fiduciary duty (without any justification) that's cool too right? But if I ask questions about why CGF attorneys are conceding their best arguments and forgetting something as simple as requesting oral argument, on cases that impact THE CONTINUED EXISTENCE OF OUR RIGHT TO BEAR ARMS, I'm not being nice enough? This isn't about me being resentful against some past CGF slight, it is about CGF continuing to screw up RKBA litigation, and continuing with a pattern of denial and external blame.

Matt? Did I accuse you of a breach of fiduciary duty? Could you please be more specific?

flyonwall
07-16-2013, 1:02 PM
Join with Fabio- Bad case made really bad law. Cities can now cite this as authority for any gun restriction they want to pass and further support their nuisance actions.
Plan B should be find new lawyers or stop letting the computer engineers guide legal strategy.

taperxz
07-16-2013, 1:09 PM
Join with Fabio- Bad case made really bad law. Cities can now cite this as authority for any gun restriction they want to pass and further support their nuisance actions.
Plan B should be find new lawyers or stop letting the computer engineers guide legal strategy.

Even though this was not published? Just asking.

flyonwall
07-16-2013, 1:15 PM
Yes and no- it will not be cited in a brief directly- but every city attorney will cut and paste it in to every brief and advisory memo they write to encourage stupid action. The la city attorney memo on high cap bans is the stupidest thing written, but they will take whatever they want to justify their abuse and these guys just made that a little easier.

USMCM16A2
07-16-2013, 1:38 PM
Tincan,


Are you one of Fabios relatives?. Has Fabio somehow morphed into his own sidekick, multiple personalities? Wow..........A2

non sequitur
07-16-2013, 1:45 PM
http://www.courts.ca.gov/opinions/nonpub/A136092.PDF

"To put the matter simply, the San Mateo ordinance at issue in this case has nothing at all to do with “the registration and licensing of firearms” and hence cannot be considered preempted by Government Code section 53071."

taperxz
07-16-2013, 1:50 PM
http://www.courts.ca.gov/opinions/nonpub/A136092.PDF

"To put the matter simply, the San Mateo ordinance at issue in this case has nothing at all to do with “the registration and licensing of firearms” and hence cannot be considered preempted by Government Code section 53071."

HUH?

A license to carry a concealed firearm, issued by a Sheriff for the state should certainly preempt local ordinances in regard to firearms which is also preempted law. In this case we are talking about a public park.

I sure would like to know more on why this case was dismissed though. I don't think we will get a response from the plaintiff however.

flyonwall
07-16-2013, 2:12 PM
Plaintiff was Calguns. Calguns thought this case was a good idea. Calguns lost- badly- adding to their list losses- Scocca, Nordyke and of course Peterson. I don't say that in a bad way, they have done a lot if good as well and I am a fan.

chainsaw
07-16-2013, 2:23 PM
Plaintiff was Calguns.
Correction: At this stage, the plaintiff is Gene Hoffman (chairman of the CGF), and the CGF (what you call Calguns).

Initially, there was also another plaintiff (Grant Early, of U15 stock fame), who had to be removed in the middle of the suit, for reasons that we don't need to go into here.

I do, however, concur that we will probably not get an explanation of this case's ultimate fate from either of the two remaining plaintiffs.

wildhawker
07-16-2013, 3:05 PM
"Ultimate fate" is being quite presumptuous. We'll share more when it's appropriate.

-Brandon

FABIO GETS GOOSED!!!
07-16-2013, 3:13 PM
We'll share more when it's appropriate.

How tantalizing! :laugh: How many times have we heard promises like that before? Straight out of the CGF "spin" playbook lol.

taperxz
07-16-2013, 3:32 PM
"Ultimate fate" is being quite presumptuous. We'll share more when it's appropriate.

-Brandon

Brandon, i don't think any one was being overly presumptuous in this case unless CGF truly wanted to get the case dismissed.

I do look forward to hearing more on this but, IDK.

taperxz
07-16-2013, 3:33 PM
How tantalizing! :laugh: How many times have we heard promises like that before? Straight out of the CGF "spin" playbook lol.

This is down right mean. I do like the "jedi mind trick" reference though. If not only for hope that "A" case will be won.:)

FABIO GETS GOOSED!!!
08-06-2013, 11:44 AM
This is bad news, right? Or is it good news? I'm so confused! :laugh:

The opinion in the above-entitled matter filed on July 15, 2013, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.

flyonwall
08-06-2013, 12:00 PM
No confusion here- bring on the municipal magazine bans and thank Gene for it.
This is bad.
To quote "wrong people, wrong time, wrong case".

wildhawker
08-06-2013, 12:27 PM
Some people don't get it yet. That's fine. It's easier for armchair quarterbacks to snipe than think.

-Brandon

FABIO GETS GOOSED!!!
08-06-2013, 12:38 PM
Some people don't get it yet.

So, it is good news! Yay!

flyonwall
08-06-2013, 12:48 PM
Oh yeah, you are headed straight for the Supreme Court with this- roflmao.
Instead of beating around the push, since low hanging fruit doesn't seem to be working well, why not simply mobilize and push applications and civil rights actions?
Ps- I am not in the arm chair- I am in the game. My team isn't winning, but they aren't losing at such a devastating and miserable rate, nor have they delayed the whole country and cert by two years because of the nordyke debacle.
I don't want to fight with you, I want to move forward, apply pressure and bring about change while we wait for the 9th to rule and if necessary long after, but when a majority of California can't even get a permit.
They look to you- so is the time now to apply and assert that pressure or are you still saying they should wait?

flyonwall
08-06-2013, 12:56 PM
It is good news because the secret playbook/master plan of CGF chess says this will go to the Supreme Court and save us all, so just standby and trust the engineers. It is a chess game not be understood by us mere mortals.

taperxz
08-06-2013, 12:57 PM
I guess what bothers me most about all this is that even if Richards/Peruta are winners at the 9th, I still won't be able to carry in a San Mateo county parks and perhaps other places the county or municipals determine to be sensitive!

It SEEMS like the closer we get to a SCOTUS decision on carry for all, the ground work is being laid out for micro governments of the state to ban at their own discretion.

Maybe its time to leave the hornets nest alone?

FABIO GETS GOOSED!!!
08-06-2013, 1:12 PM
Pop the cork...we've got a published appellate decision in a losing case! Our secret strategy is coming together nicely. Only those with elevated thinking skills can understand why this loss is really a win! :laugh:

wildhawker
08-06-2013, 2:30 PM
I guess what bothers me most about all this is that even if Richards/Peruta are winners at the 9th, I still won't be able to carry in a San Mateo county parks and perhaps other places the county or municipals determine to be sensitive!

Not quite. You're thinking only in terms of what courts have/might/will say on the issue of state pre-emption. How about Bonidy or the recently-filed Morris v. Army Corp of Engineers (http://www.mountainstateslegal.org/cases/all-cases/morris-v.-u.s.-army-corps-of-engineers#.UgF4lWRASuZ)?

There are other questions left to ask in different venues.

It SEEMS like the closer we get to a SCOTUS decision on carry for all, the ground work is being laid out for micro governments of the state to ban at their own discretion.

Of course they will try -- who expects state and locals to not nickel-and-dime us to death? They hate us. They're going to pass laws and see what sticks. That's the game now, and it always will be.

Maybe its time to leave the hornets nest alone?

Because doing that means San Mateo won't pass a parks ban? They already did.

-Brandon

wildhawker
08-06-2013, 2:32 PM
Pop the cork...we've got a published appellate decision in a losing case! Our secret strategy is coming together nicely. Only those with elevated thinking skills can understand why this loss is really a win! :laugh:

Would you agree that working from fixed constraints and fewer moving parts provides a more narrow and clear issue to address differently?

-Brandon

FABIO GETS GOOSED!!!
08-06-2013, 2:52 PM
Would you agree that working from fixed constraints and fewer moving parts provides a more narrow and clear issue to address differently?

So, you threw this one for the sake of "fixed constraints and fewer moving parts"? :facepalm: Great spin. :laugh:

wildhawker
08-06-2013, 3:20 PM
So, you threw this one for the sake of "fixed constraints and fewer moving parts"? :facepalm: Great spin. :laugh:

Either pre-emption was enforceable against the ordinance (and others like it) or not. If we won, then we would have had that tool to employ in other jurisdictions. Had it been cited in support of pre-emption, Fiscal would have been the great triumph that lay dormant for years, re-awakened with new vigor.

However, the Court flatly rejected pre-emption and created some interesting new twists on carry law without authority for it. Fiscal is left to the dust bin of history as an anomaly that never was a truly golden goose -- just a gold plated egg that likely won't be found to have teeth outside of identical facts. West Hollywood rules the day.

Not spin, friend. Just the facts.

Now, either the Second Amendment means what it says or not. As you would expect, we'll be asking that question because we want the answer.

-Brandon

taperxz
08-06-2013, 4:07 PM
Maybe its time to leave the hornets nest alone?



Because doing that means San Mateo won't pass a parks ban? They already did.

-Brandon


Well, yes of course! What i meant was at least in retrospect to address a lot of this "after" carry has been established.

FABIO GETS GOOSED!!!
08-06-2013, 7:48 PM
So, your team is the NRA right? Well, after reading the opinion, I was struck by the Court's direct attacks on the NRA, more so than CGF. Perhaps it might have been better if it and the Michel folks had not barged in and made arguments that the Plaintiffs themselves did not want to make.

Oh, and that big NRA win in Fiscal?? It doesn't look so big now.

Anyway, at the end of the day, this is just a state court decision on preemption. It was not a constitutional case. While winning is always better than losing, this doesn't seem like that big of a deal.

:laugh:

moleculo
08-06-2013, 7:54 PM
Well, it's become pretty clear why I was attacked so vehemently several years ago by CGF board members for the suggestion to CGF to publish a balanced scorecard of their litigation track record. At the time my suggestion was meant to provide (hopefully) positive PR that would encourage potential donors to contribute based on a positive progress. Oh well...I guess there isn't much hope of telling THAT story from a balanced score card at this pace.

BTW, does anyone know a qualified attorney (start your search with attorneys whose last name doesn't end in Kilmer) that I can use to help me file a civil rights lawsuit against CGF that will compel CGF to stop filing crappy lawsuits that are having the net affect of actually eroding my 2A rights? LOL.

curtisfong
08-06-2013, 8:00 PM
BTW, does anyone know a qualified attorney (start your search with attorneys whose last name doesn't end in Kilmer) that I can use to help me file a civil rights lawsuit against CGF that will compel CGF to stop filing crappy lawsuits that are having the net affect of actually eroding my 2A rights? LOL.

Birdt, Gorski, and FGG should be on your short list.

moleculo
08-06-2013, 8:01 PM
Birdt, Gorski, and FGG should be on your short list.

Yeah you're probably right...they haven't lost nearly as many 2A cases as CGF and Kilmer.

curtisfong
08-06-2013, 8:05 PM
Yeah you're probably right...they haven't lost nearly as many 2A cases as CGF and Kilmer.

Have you contacted them yet? If not, get to it!

taperxz
08-06-2013, 8:08 PM
Plaintiff should have used Huddart county park. Archery is allowed there. Archery is also protected under the 2A.

Tincon
08-06-2013, 8:08 PM
Would you agree that working from fixed constraints and fewer moving parts provides a more narrow and clear issue to address differently?

-Brandon

So basically the good news is we have fewer issues to fight about now. The bad news is, that's because you screwed up some issues so badly that we lost and can't fight about them anymore.



Now, either the Second Amendment means what it says or not. As you would expect, we'll be asking that question because we want the answer.

-Brandon

Rah Rah Rah!!!!! Well now that we know that you have taken such a righteous position, there is no way you can do any more harm!

FABIO GETS GOOSED!!!
08-06-2013, 8:10 PM
Now, either the Second Amendment means what it says or not. As you would expect, we'll be asking that question because we want the answer.

That's your secret "Plan B" or is that a smokescreen for some other super secret "Plan B"? lol.

This was a loser case, a waste of time with a predictable outcome. You were not satisfied with the trial court loss, you had to appeal it, lose again, and get a published appellate decision out of it. Great job! But yeah, no big deal, it's just a preemption case! It was necessary to do this before a 2A carry challenge why exactly? At least there will be a carry challenge now, it's only been a couple years since the 9th circuit invited the Nordykes to do that.

moleculo
08-06-2013, 8:47 PM
That's your secret "Plan B" or is that a smokescreen for some other super secret "Plan B"? lol.

This was a loser case, a waste of time with a predictable outcome. You were not satisfied with the trial court loss, you had to appeal it, lose again, and get a published appellate decision out of it. Great job! But yeah, no big deal, it's just a preemption case! It was necessary to do this before a 2A carry challenge why exactly? At least there will be a carry challenge now, it's only been a couple years since the 9th circuit invited the Nordykes to do that.

CGF contributions hard at work :TFH:

-hanko
08-08-2013, 8:16 AM
ttt

FABIO GETS GOOSED!!!
11-13-2013, 1:53 PM
In breaking news, gun-regulating counties throughout the state thank Calguns foundation for helpful published decision:

11/13/2013 Petition for review & depublication request(s) denied

rootuser
11-13-2013, 3:09 PM
These cases always make me nervous because a loss is worse than what you gain from winning (just my opinion). We're in the poop now. The counties as a whole can now, by precedence, abridge concealed carry by designation rules. So now what?

I refuse to bag on the groups involved here and they are doing their best but can we be a BIT more careful in our selection of cases? Particularly San Mateo county? Oh my that 's always a loss to begin with and it's much harder to overcome a judges ruling than defend one. Not to mention the damage control you have to do after the fact is always an uphill battle and this one is at a tactical loss at this point. There may be a grander strategy to which I am not privy.

taperxz
11-13-2013, 3:51 PM
In breaking news, gun-regulating counties throughout the state thank Calguns foundation for helpful published decision:

Nothing like having to start from scratch and giving your opponent a head start to boot.

Librarian
11-13-2013, 3:51 PM
As these resurface, I'm moving them to Litigation Forum.

Tincon
11-13-2013, 4:04 PM
In breaking news, gun-regulating counties throughout the state thank Calguns foundation for helpful published decision:

CGF is a more effective anti-gun org than Brady or VPC, and that isn't hyperbole. I would pay them NOT file cases. Beg even.

taperxz
11-13-2013, 4:17 PM
Is CGF going to continue fighting this all the way to the SCOTUS?

Just asking.

FABIO GETS GOOSED!!!
11-13-2013, 5:08 PM
This is the end of the road for Calguns v. San Mateo.

Apocalypsenerd
11-13-2013, 5:32 PM
Any comment from CGF on the recent couple of outcomes that FGG predicted?

It is starting to look like FGG would be a better litigator for us than the folks you have been hiring.

FABIO GETS GOOSED!!!
11-13-2013, 5:56 PM
This is quite intentionally the foundation for "Plan B"...all will be revealed at the appropriate time! :laugh:

taperxz
11-13-2013, 6:28 PM
That risk-reward tradeoff depends on who you are, and what your goals are.

If you had a CCW permit, and lived very close to Edgewood park, you would probably come to a different conclusion. The risk does not affect you, and the reward would have been significant.

The risk? How about setting a precedence that any county in this state can now forbid firearms on public property of their choosing? This ruling affects all Californians! Not to mention it is published law.

Paladin
11-13-2013, 7:57 PM
Is CGF going to continue fighting this all the way to the SCOTUS?

Just asking.IIRC, in another thread Gray said yes re. CGF taking this to the CA Sup Ct. Can't recall if he was merely saying CGF could, or saying they would.

FABIO GETS GOOSED!!!
11-13-2013, 8:11 PM
IIRC, in another thread Gray said yes re. CGF taking this to the CA Sup Ct. Can't recall if he was merely saying CGF could, or saying they would.

CA supreme court didn't want to hear the case and wouldn't depublish it, so it's over: bad law, published decision.

Tripper
11-13-2013, 8:15 PM
didnt that case pretty much open up negating state preemption?
and make it where cities/counties can start enacting their own laws as they see fit, like a couple have done already.

Noggles
11-13-2013, 8:22 PM
I still carry in San Mateo County Parks. They can suck my balls.

moleculo
11-13-2013, 8:28 PM
CGF is a more effective anti-gun org than Brady or VPC, and that isn't hyperbole. I would pay them NOT file cases. Beg even.

I posted almost this exact same thing a couple of months ago. At this point CGF is doing more damage to my 2A rights I than most anti-gun groups and I want them to stop NOW. The only way for that to happen is for people to open their eyes and stop donating...

kcbrown
11-13-2013, 8:36 PM
Normally, I would be a lot more concerned about this than I am. But the fact of the matter is that if these cases can't be won on the fundamentals, then state preemption or lack thereof doesn't matter, because the state will simply eventually get to the same place the municipalities are already going.

That doesn't mean I agree with anyone filing bad cases or arguing otherwise good cases badly. It does mean that, at the end of the day, either the 2nd Amendment has teeth or it doesn't.

And you guys already know what my beliefs are as regards the real-world applicability of the 2nd Amendment as interpreted by the judiciary: it doesn't have any teeth at all to speak of, and evidence to the contrary is so scarce as to deserve a place on the endangered species list right next to the California condor.

taperxz
11-13-2013, 8:42 PM
I posted almost this exact same thing a couple of months ago. At this point CGF is doing more damage to my 2A rights I than most anti-gun groups and I want them to stop NOW. The only way for that to happen is for people to open their eyes and stop donating...

I think most of their donations came from their presence here on CGN.

I have no idea how they would continue getting donations without this presence and even the 24a think has gone away. (on this site)

I really do think they had a great idea!! They just made some really bad decisions along the way. IMHO they should have never completely abandoned the quest for the Sunshine Initiative. At very least, stall it with a public announcement for the supporters.

CGF ruined its own reputation for losing court cases, abandoning their support base and more importantly, (i think) pissing off the courts with bad cases.

Not to mention, acting like a lawyer when you are in fact not really a lawyer and trying to debate law with others that are. THEN LOSING THE CASES IN THE WAY YOU WERE TOLD YOU WERE GOING TO LOSE THEM.:yes::laugh:

taperxz
11-13-2013, 8:44 PM
Normally, I would be a lot more concerned about this than I am. But the fact of the matter is that if these cases can't be won on the fundamentals, then state preemption or lack thereof doesn't matter, because the state will simply eventually get to the same place the municipalities are already going.

That doesn't mean I agree with anyone filing bad cases or arguing otherwise good cases badly. It does mean that, at the end of the day, either the 2nd Amendment has teeth or it doesn't.

And you guys already know what my beliefs are as regards the real-world applicability of the 2nd Amendment as interpreted by the judiciary: it doesn't have any teeth at all to speak of, and evidence to the contrary is so scarce as to deserve a place on the endangered species list right next to the California condor.

KC, you don't give enough credit to "deferring to counsel" in the cases you are talking about including this gem.

As a non lawyer (to extreme) I thought this case would have been a slam dunk. I still think it could have been with the right argument.

Gray Peterson
11-13-2013, 9:32 PM
IIRC, in another thread Gray said yes re. CGF taking this to the CA Sup Ct. Can't recall if he was merely saying CGF could, or saying they would.

I believe when I answered the question, it was already public knowledge that there was an appeal to Cal SC already pending or announced.

I don't believe there were any federal constitutional claims in the case. If it's all state claims and nothing federal, SCOTUS does not, as a general rule, have jurisdiction over California statutory law claims.

Paladin
11-13-2013, 9:33 PM
CA supreme court didn't want to hear the case and wouldn't depublish it, so it's over: bad law, published decision.
Ugh....

I thought this was a request for the AC to review it, not the SC.

I believe when I answered the question, it was already public knowledge that there was an appeal to Cal SC already pending or announced.My mistake. I spent a few minutes trying to find your post but couldn't, so I hedged my statements.

About a half hour ago, while I was online, I listened to about 6 shots in the distance from "the bad part of town." I guess the BGs didn't get the memo about CA being May Issue, not Con Carry. I'm sure any BGs in San Mateo Co will unload and disarm before entering its parks. :rolleyes: This state can really suck sometimes....

FGG, what sort of Carry Case do you think SCOTUS would be willing to hear? Would they vote for carry? If so, what type/s of carry?

Paladin
11-13-2013, 9:35 PM
I still carry in San Mateo County Parks. They can suck my balls.
If you get caught and put in the Big House, you may be doing that for your new bunk buddy.... :(

This state can really suck sometimes....

kcbrown
11-13-2013, 10:12 PM
KC, you don't give enough credit to "deferring to counsel" in the cases you are talking about including this gem.


In which direction? Plaintiffs not giving sufficient deference to advice of counsel, or doing so and losing anyway?

The losses are not just CGF's. They're very nearly across the board. They're not just here. They're very nearly everywhere.

Even NRA v BATFE was a loss, and that was in arguably the most pro-gun circuit in the land.

No, while stupid arguments can get you a loss, Tincon's point about the role of amicus briefs in these cases pretty much nukes the theory that these cases were lost due to bad arguments made by plaintiffs and/or their counsel, and that just serves to reinforce the argument that the fault for these losses is squarely on the courts, not the plaintiffs or their counsel.



As a non lawyer (to extreme) I thought this case would have been a slam dunk. I still think it could have been with the right argument.Were we dealing with a judiciary that was making decisions objectively, then you could be right about that. I don't have any reason to believe that we're dealing with that kind of judiciary, and plenty of reason to believe that we're not.

Look, the fact of the matter is that if we were dealing with an objective judiciary, then we'd be winning something like 50% of these cases just on the odds alone. The fact that we're talking about a fundamental Constitutional right here means that it shouldn't be necessary to employ counsel from the top 2% of the field just to get a win on the fundamentals. A run-of-the-mill lawyer should be able to win these things a reasonable amount of the time, at least as often as one would win a coin toss. That's not even close to what's actually happening.

Even in cases where the judge isn't invested in the outcome, judges decide cases largely by intuition (http://www.dallasbar.org/system/files/rachlinski_paper.pdf). Guess where intuition comes from. Think personal prejudices don't factor into intuition? Now factor in a significant investment in the outcome due to the nature of the subject matter. What in the world would make anyone in their right mind think that such an investment would result in greater objectivity?


No, you can accuse CGF and/or their counsel of incompetence all you want. That's not something I can really argue against because I simply don't have the data for it. But I'm telling you here and now that in the face of the judiciary we're up against, it doesn't matter. The end result is the same. And if you don't believe me, then ask the NRA why they lost NRA v BATFE at the circuit level in what one should rightfully think is the most pro-RKBA circuit in the land.

Apocalypsenerd
11-13-2013, 10:32 PM
Any comment from CGF?

FABIO GETS GOOSED!!!
11-14-2013, 7:27 AM
CGF's got 'em right where they want 'em now! Donation inbound! :laugh:

fizux
11-14-2013, 7:41 AM
CGF's got 'em right where they want 'em now! Donation inbound! :laugh:
You're really enjoying this case.

swat
11-14-2013, 8:08 AM
Why do we always lose? Should I keep making donations to this cause or just move from CA?

Tincon
11-14-2013, 9:47 AM
The losses are not just CGF's. They're very nearly across the board. They're not just here. They're very nearly everywhere.

To analogize to poker, for those of you are familiar: You can lose with any hand that you have pre-flop. Even Aces. But when you have Aces, and it's go all-in or fold, you go all in. You take you shot when you have the best odds. The NRA/CRPA does that, and they have a great track record (see below). But you can't win every time. CGF on the other hand likes to go all-in with seven-deuce off-suit, over and over again. In other words, CGF is a donkey, and has been on tilt for years. CGF has a track record of zero wins and more than a dozen losses and counting.

Take a look at the NRA/CRPA's solid track record: http://www.calgunlaws.com/wp-content/uploads/2013/06/NRA-CA-Accomplishments1.pdf

CGF has no such thing, just a lot of talk.


No, while stupid arguments can get you a loss, Tincon's point about the role of amicus briefs in these cases pretty much nukes the theory that these cases were lost due to bad arguments made by plaintiffs and/or their counsel, and that just serves to reinforce the argument that the fault for these losses is squarely on the courts, not the plaintiffs or their counsel.

To continue the poker analogy: Amicus briefs are like helping with betting/folding advice. Sometimes they can be very important, and even win the hand. But when you have already gone all in with seven-deuce off-suit, there isn't much anyone can do to help you.

fizux
11-14-2013, 10:14 AM
To continue the poker analogy: Amicus briefs are like helping with betting/folding advice. Sometimes they can be very important, and even win the hand. But when you have already gone all in with seven-deuce off-suit, there isn't much anyone can do to help you.That kind of undermines the theory that NRA really won Heller and McDonald (despite SAF), unless you subscribe to the house rule that allows only the NRA to decide whether to fold after everyone shows their cards.

I think Paul Clement has done a phenomenal job with oral arguments, but a lot went into those cases before oral args. Alan Gura is good in the mix too -- I was really rooting for him to overturn the Slaughterhouse cases, but everyone thought that was a bit of a reach and the decision went to our "backup offer" argued by Amicus in Heller. Like all civil rights litigation, this will take a long time to flesh out. The reactions were the same to Dred Scott, Plessy, and a whole load of cases after Brown. Bakke was in 1978, yet everyone agrees that we will still be screwing around with affirmative action until long after 2028. Heller is our Brown v. Board, and we sure as heck haven't resolved racism in this country.

CGF has no such thing, just a lot of talk.
Then don't donate to CGF, and direct more money to NRA or another appropriate organization.

You could make a donation to a competent organization, which has a good track record of winning lawsuits, and causing legislation to be passed. My suggestions would be Brady or LCAV.Of course Brady and LCAV have a good track record in CA; thankfully, they have a horrible track record in most of the rest of the country. I hate to disappoint, but Tincon's audience is not considering Brady or LCAV.

Tincon
11-14-2013, 10:28 AM
That kind of undermines the theory that NRA really won Heller and McDonald (despite SAF), unless you subscribe to the house rule that allows only the NRA to decide whether to fold after everyone shows their cards.

Heller was a very well chosen case (even if the initial timing didn't seem so great). I think some very smart people were behind it... In any case, it was no seven-deuce off-suit. But clearly had we relied on Gura's arguments, we would have lost. All but one Justice rejected them.


Alan Gura is good in the mix too -- I was really rooting for him to overturn the Slaughterhouse cases, but everyone thought that was a bit of a reach and the decision went to our "backup offer" argued by Amicus in Heller.

First, I'd have to disagree with you that Gura was "good". But our opinions don't mean squat. On the other hand, when both a federal circuit judge, and a sitting Supreme Court justice, both of whom ruled in our favor in Heller, criticized his handling of that case, I think it's worth paying attention.

Second, Gura's attempt to overturn Slaughterhouse was more than "a bit of a reach", it was flat out ridiculous. It showed that he either didn't care about making wining arguments, or that he had no understanding of what the justices thought. If not for the NRA's "back-up" argument, then we may have been set back another 3-4 years.

But despite Gura and the SAF's failings, Gura/SAF have done a far better job than CGF. And CGF is the problem being discussed here, not SAF.


Then don't donate to CGF, and direct more money to NRA or another appropriate organization.

And of course I do that. But unless more people understand how CGF is screwing us, they will keep feeding it, and it will keep filing counter-productive crap like this until they do what Brady and LCAV can't do.

RipVanWinkle
11-14-2013, 10:33 AM
To analogize to poker

Poker! :confused: I thought the game was Chess! :rolleyes:

Tincon
11-14-2013, 10:38 AM
Poker! :confused: I thought the game was Chess! :rolleyes:

Well, they aren't very good at that either...:cool:

kcbrown
11-14-2013, 4:54 PM
To analogize to poker, for those of you are familiar: You can lose with any hand that you have pre-flop. Even Aces. But when you have Aces, and it's go all-in or fold, you go all in. You take you shot when you have the best odds. The NRA/CRPA does that, and they have a great track record (see below). But you can't win every time. CGF on the other hand likes to go all-in with seven-deuce off-suit, over and over again. In other words, CGF is a donkey, and has been on tilt for years. CGF has a track record of zero wins and more than a dozen losses and counting.

Take a look at the NRA/CRPA's solid track record: http://www.calgunlaws.com/wp-content/uploads/2013/06/NRA-CA-Accomplishments1.pdf


Sorry, but you're undermining your own credibility by citing as evidence of NRA/CRPA's "solid track record" a document that lists Peruta as an "accomplishment" when, as of now, it's no such thing (because the most you can say about it is that it hasn't been lost entirely yet). Further, how many of the wins that they did get occurred on the basis of the 2nd Amendment? The only ones I see are the ones that parroted Heller, and then only when they came hot on the heels of Heller. I don't want to downplay NRA/CRPA's record here, but you're making it out to be better than it is. It may be better than everyone else's but that's not saying very much when wins are nigh unto impossible to come by in the 2nd Amendment arena. NRA/CRPA's track record in the 2nd Amendment arena looks great with respect to cases it brings that are factually identical to Heller. For the rest of the 2nd Amendment cases, their track record appears not to be significantly better than anyone else's -- it's dominated by losses just like everyone else's track records are.

Nevertheless, you're right about both your analogy and CGF's track record. However, your analogy is incomplete, because it fails to state that the house always has aces when it wants them.



To continue the poker analogy: Amicus briefs are like helping with betting/folding advice. Sometimes they can be very important, and even win the hand. But when you have already gone all in with seven-deuce off-suit, there isn't much anyone can do to help you.No, your argument is that the courts can and do make their decisions based on amicus briefs (and not just arguments presented by counsel). So either you're contradicting yourself here, or you're saying that the cases in question are unwinnable under any standard of review whatsoever.

Are you really saying the latter? Are you really saying that there is no basis upon which to challenge San Mateo's ban on carry in public parks even with a 2nd Amendment that treats carry in public as a first-class right? I'm skeptical, because it would be the equivalent of saying that there's no basis upon which to challenge a blanket ban on public speech in public parks. In other words, it's the equivalent of saying that the 2nd Amendment is effectively null and void as regards carry in public. That may be (and, I'd argue, is) the judiciary's view of the 2nd Amendment, but you're implying here that we should simply assume that to be the case for the purpose of bringing cases, and that would, I believe, contradict statements you've made in the past about this.

kcbrown
11-14-2013, 5:16 PM
Second, Gura's attempt to overturn Slaughterhouse was more than "a bit of a reach", it was flat out ridiculous. It showed that he either didn't care about making wining arguments, or that he had no understanding of what the justices thought. If not for the NRA's "back-up" argument, then we may have been set back another 3-4 years.


What was NRA's argument that would have swayed Thomas over to our side?

Tincon
11-14-2013, 5:43 PM
You do understand that you can't introduce new facts on appeal (via amicus or anything else)?

Apocalypsenerd
11-14-2013, 5:43 PM
A lack of commentary by CGF does not breed confidence.

kcbrown
11-14-2013, 5:45 PM
You do understand that you can't introduce new facts on appeal (via amicus or anything else)?

Yes. Could you describe how that's relevant here? The 2nd Amendment argument is one of law, not facts, if I'm not mistaken...

Tincon
11-14-2013, 5:48 PM
Yes. Could you describe how that's relevant here? The 2nd Amendment argument is one of law, not facts, if I'm not mistaken...

A 2A case, like every other, applies the law to a set of facts (both of which may or may not be in dispute). An amicus brief cannot improve the facts. I hope you can understand how that's relevant.

Tincon
11-14-2013, 5:50 PM
A lack of commentary by CGF does not breed confidence.

Once people start to question if the emperor is actually wearing any clothes, he tends to stop showing off his latest fashions.

kcbrown
11-14-2013, 5:56 PM
A 2A case, like every other, applies the law to a set of facts (both of which may or may not be in dispute). An amicus brief cannot improve the facts. I hope you can understand how that's relevant.

I do understand how that can be relevant in the general case. However, your question implies that it is the set of facts, and not the arguments surrounding the facts presented, that is lacking in the San Mateo case.

In what way is the San Mateo case lacking as regards its facts? If you cannot say because doing so may endanger future litigation, that's fine, but my understanding is that the San Mateo carry ban is a blanket ban in the areas covered and that this, at least, was understood to be true in this case. Should that not be sufficient grounds for a 2nd Amendment challenge? If not, then why would it be sufficient grounds for a 1st Amendment challenge if the ban were on public speech rather than public carry?

Either Constitutional protections actually, you know, protect something, or they don't. The 1st Amendment has been interpreted by the judiciary as protecting speech rather strongly and widely. The 2nd Amendment has thus far, with few exceptions, been interpreted as not protecting anything at all except for limited ownership and carry in the home of handguns. For all practical purposes, the 2nd Amendment doesn't exist at all except in the home, and this situation is of the judiciary's own making.


So in light of the above, how is CGF, and not the judiciary, at fault for this particular end result?

Tincon
11-14-2013, 5:58 PM
I hope you don't expect me to re-write the San Mateo trial briefs here in post form.

kcbrown
11-14-2013, 6:05 PM
I hope you don't expect me to re-write the San Mateo trial briefs here in post form.

I'm not asking you what those briefs said, I'm asking you what they didn't say. Because you seem to be claiming that they missed crucial facts that could somehow have made the difference between a loss and a win.

And, frankly, I'm deeply skeptical of that, especially in light of the judiciary's behavior on all this.

Otherwise, you're left having to explain things like why Peruta and Jackson were lost in district court despite them having "winning" arguments and "winning" facts.


Lest you believe my intent is to defend CGF here, it's not. CGF could easily have erred (somehow) in bringing this case. I'm asking you to back your position with more than mere assertion, and to prove that this case was actually winnable.

Tincon
11-14-2013, 6:07 PM
Otherwise, you're left having to explain things like why Peruta and Jackson were lost in district court despite them having "winning" arguments and "winning" facts.

I'd like to think my poker analogy did that. Sometimes aces get cracked. More often then not in the lower court levels when applying novel con law, which is probably where the analogy breaks down.

Tincon
11-14-2013, 6:09 PM
I'm asking you to back your position with more than mere assertion, and to prove that this case was actually winnable.

The only way to do that would be to bring a better case. No one can do that now, thanks to CGF.

FABIO GETS GOOSED!!!
11-14-2013, 6:13 PM
A lack of commentary by CGF does not breed confidence.

Come on now, with all the irons in the fire and top secret strategizing, you can't expect them to monitor every thread can you? Trust me they're cooking up something really good, can't say what it is but it will be worth the wait. :whistling: Just sent off a $100 check, go get 'em CGF! :laugh:

kcbrown
11-14-2013, 6:29 PM
The only way to do that would be to bring a better case. No one can do that now, thanks to CGF.

If the facts were lacking in the CGF case, then doesn't it follow that a better case can be brought on the basis of a different (better) set of facts?

As such, I'm skeptical of this claim as well.

kcbrown
11-14-2013, 6:30 PM
I'd like to think my poker analogy did that. Sometimes aces get cracked. More often then not in the lower court levels when applying novel con law, which is probably where the analogy breaks down.

Then explain the loss in NRA v BATFE. That wasn't just a district loss, it was an appellate loss.

Also, explain the district-level win in Woollard.

No, lower level courts are just as capable of applying "novel" Constitutional law as any other courts. And that's as it should be, for the Constitution is the supreme law of the land, is it not? No, you won't win the argument on this basis.


Look, the bottom line is this: it appears to me that you're acting like a cheerleader for the NRA, as if the NRA/CRPA is vastly superior to all other alternatives. The actual track record as regards 2nd Amendment litigation shows scant real difference. With the exception of cases that were essentially identical to Heller in their facts, it shows a near-100% failure rate (it might actually be 100%, but I'm not willing to go quite that far because I'm not omniscient).

Guess what? That's essentially the same failure rate everyone else has.

If there's any real difference between the NRA/CRPA and other organizations, it's that they bring fewer 2nd Amendment cases. It's hard to call that a bonus when 2nd Amendment jurisprudence is in its infancy, precisely when more cases should be brought to flesh out the right that's being protected. And California's perhaps the most target-rich environment in the country. Everything says there should be piles of 2nd Amendment cases. Where are they?

Now, I'm in full agreement that you back your best horse on this stuff, but as of now there's no truly good way to decide which horse is best. That's what happens when everyone consistently loses.

And when everyone consistently loses no matter who is making the argument, that is nearly incontrovertible evidence that the problem is not with those making the arguments, but with those deciding the cases.


I am an equal opportunity critic. If I see people making real mistakes, I'll call them on it, and it doesn't matter who they are. I want us to win. I don't give a damn who accomplishes that. I don't care about people's reputations, I care about results. And the plain fact of the matter is that in California, at least, absolutely nobody is getting them in the 2nd Amendment litigation arena. That's generally true throughout the country as well. Where results are positive (7th Circuit), they're positive for NRA and other organizations (e.g., SAF).

In short, I see no real evidence to distinguish between the players here as regards 2nd Amendment outcomes, and you're steadfastly refusing (so far) to present compelling evidence that this particular loss was the result of a CGF screw-up as opposed to a hostile judiciary.

Tincon
11-14-2013, 6:36 PM
Then explain the loss in NRA v BATFE. That wasn't just a district loss, it was an appellate loss.

Also, explain the district-level win in Woollard.


I said more often, not always and never. That's the entire point of the poker analogy. Sometimes it's the cards, sometimes it's the player, and sometimes it's chance.

The NRA has a better track record than CGF. That much is clear. But what I'm also saying, is that the M&A team, and Paul Clement, have a great deal of constitutional litigation experiance, and impressive credentials to say the least. Lately CGF has been hiring people with none of the above, people with no firearms litigation experiance. The result has been awful cases which were terribly litigated.

You can blame all that has happened on chance if you want, but there have been NUMEROUS examples of where FGG and other posters have pointed out huge holes in CGF cases, and excusable missteps like forgetting to file on time. There is no point in re-covering all that ground now. If you don't get it at this point, you are unlikely to be convinced by any evidence.

kcbrown
11-14-2013, 6:45 PM
I said more often, not always and never. That's the entire point of the poker analogy. Sometimes it's the cards, sometimes it's the player, and sometimes it's chance.


And sometimes it's that the house has rigged the game. Which is the situation here.



The NRA has a better track record than CGF. That much is clear.


Sure. But not incredibly better.

I agree that we're better off backing the best we've got. I'm just saying that the best we've got isn't getting it done, and you can't cheerlead for an organization on the basis of it being better if that organization isn't getting it done.



But what I'm also saying, is that the M&A team, and Paul Clement, have a great deal of constitutional litigation experiance, and impressive credentials to say the least.
And that's gotten us what in California so far? Squat, that's what.



Lately CGF has been hiring people with none of the above, people with no firearms litigation experiance. The result has been awful cases which were terribly litigated.
With results nearly identical to those gotten by those with a great deal of Constitutional litigation experience.

This is in no way meant to impugn those with such experience, only to illustrate that the root cause of the problem is primarily the judiciary.

As I said, winning this stuff shouldn't require the top 2% of the talent in the entire nation. We're talking about fundamentals here, stuff that even garden-variety counsel should be able to win. If it takes the best talent in the entire country just to eke out something like a 10% win rate, it's hard to conclude anything other than that the Constitutional protection in question is worthless.



You can blame all that has happened on chance if you want, but there have been NUMEROUS examples of where FGG and other posters have pointed out huge holes in CGF cases, and excusable missteps like forgetting to file on time. There is no point in re-covering all that ground now. If you don't get it at this point, you are unlikely to be convinced by any evidence.You know what? I agree. That is a valid criticism, and if that's what separates CGF's cases from those brought by NRA/CRPA, then NRA/CRPA surely wins.

But none of that makes any difference if it doesn't translate to actual wins in court, something we're barely seeing, if at all.

Tincon
11-14-2013, 6:48 PM
With all possible respect, this complaint of "why aren't we there yet" has been made many times over. It reminds me of having an impatient child in the back seat on a road trip. The answer is, we will get there when we get there. I wish we could get there faster too. But jamming down the accelerator is just going to create more problems.

kcbrown
11-14-2013, 6:54 PM
With all possible respect, this complaint of "why aren't we there yet" has been made many times over. It reminds me of having an impatient child in the back seat on a road trip. The answer is, we will get there when we get there. I wish we could get there faster too. But jamming down the accelerator is just going to create more problems.

You misunderstand my point.

I'm not just talking about carry cases. I'm talking about all manner of cases. Cases about the waiting period. About the AWB. About the roster. About the ammunition laws. About the innumerable other infringing laws on the books.

It's fine to have a strategy and to execute it step by step when you have an infinite amount of time. We don't. We will lose the Heller majority in the next few years. Our time is limited, and any strategy that fails to account for that is no real strategy at all. Where parallel cases can be brought, they should be brought. NRA/CRPA isn't bringing them. So how does that make NRA/CRPA a superior solution if they're not even trying to get it done? At the very least, you can wind up getting the cases stayed pending some seminal decision that has to be made, so that they're ready to go when that decision is finally made. But NRA/CRPA isn't even doing that.

boanerges
11-14-2013, 6:59 PM
Second, Gura's attempt to overturn Slaughterhouse was more than "a bit of a reach", it was flat out ridiculous. It showed that he either didn't care about making wining arguments, or that he had no understanding of what the justices thought. If not for the NRA's "back-up" argument, then we may have been set back another 3-4 years.


I disagree. Look at some of the amicus briefs that we got in McDonald because of Gura's argument -- namely the brief of the Constitutional Law Professors -- people like VanAlstyne and Winkler. Those folks lend an air of establishment moderation to the debate. If we are to preserve our gun rights in this country, we cannot rely on the whims of either political party, instead we have to form a broad coalition of civil rights groups and convince them that gun rights are civil rights. We have to draw from folks like the ACLU, the gay rights people, the EFF and the like. I do not know if the NRA is capable of making that transition. I hope it is.

By the way, are you aware the NRA tried to derail Heller on several occasions?

Tincon
11-14-2013, 7:11 PM
You misunderstand my point.

I'm not just talking about carry cases. I'm talking about all manner of cases.

No I totally get that. What I said very much still applies.

I disagree. Look at some of the amicus briefs that we got in McDonald because of Gura's argument -- namely the brief of the Constitutional Law Professors -- people like VanAlstyne and Winkler.

I'm not sure what you are saying here. Are you suggesting that Gura's failed argument attracted sympathizers, and that those were somehow helpful because they supported his failed argument? If so, you will have to explain to me how.


By the way, are you aware the NRA tried to derail Heller on several occasions?

Yes, and that was the right call. Are you aware that when Heller was first filed there is a near certainty that the liberal majority then on the SCOTUS bench would have denied that there was an individual 2A right, and we would have likely lost it forever?

kcbrown
11-14-2013, 7:47 PM
No I totally get that. What I said very much still applies.


If it does, then would you mind explaining how? I see how it could apply in the context of cases that have interlocking dependencies. I don't see how it applies at all to cases that lack that. Regardless, my last question below bears on this.

For instance, why is there now (finally) a 2A challenge to the SF magazine capacity law when there wasn't one against the statewide one previously? This law has been around in essentially the same form for a long time. It could have been challenged anytime after Heller. It wasn't. What changed?

The same question applies to the AWB, the roster, the waiting period requirement, etc.


Finally, answer me this: what's the difference between arguing a case when there's precedent and arguing one when there's not?

Tincon
11-14-2013, 8:07 PM
You still aren't getting it. I'm not qualified to say when a case should be challenged. Neither are you. Neither is Charles Hokanson. What I'm saying is, there is a team of experienced and highly credentialed firearms litigators, appellate advocates, and constitutional scholars working for the NRA/CRPA. They are the best we have, and they are in the driver's seat.

You are in the back seat, whining about what has not been accomplished yet, or what took so long.

kcbrown
11-14-2013, 8:30 PM
You still aren't getting it. I'm not qualified to say when a case should be challenged. Neither are you. Neither is Charles Hokanson. What I'm saying is, there is a team of experienced and highly credentialed firearms litigators, appellate advocates, and constitutional scholars working for the NRA/CRPA. They are the best we have, and they are in the driver's seat.


That is little comfort when we're up against such a steep clock. But hopefully, they'll decide to start bringing challenges en masse. If they don't, then I'm telling you here and now that our RKBA is dead.



You are in the back seat, whining about what has not been accomplished yet, or what took so long.Then aside from your argument by appeal to authority, your basis for claiming that NRA/CRPA is vastly superior to SAF/CGF is mostly (but not entirely) without foundation.

I don't mind backing NRA/CRPA at all, mind you. I am a lifetime member of both, after all. But I can do without the (mostly) foundationless cheerleading. It makes NRA/CRPA come across as one of those "miracle products" advertised on late night TV with all the wild claims about how awesomely great it is and all that.

In other words, keep it real.

curtisfong
11-14-2013, 8:58 PM
I really don't understand why this always comes down to somebody cheerleading. Bottom line: Can we stop? Is is possible to get past all this pointless fanboi garbage and actually come up with a winning strategy?

Get it through your thick skulls: NOBODY IS DEFENDING CGF HERE. Nobody. Yet every time kcbrown (or anybody else) illustrates how badly biased CA judges are against 2A arguments, the first thing you all whine about is CGF.

Stop it. It's tiresome.

I refuse to defend (going forward) the CGF in response, and in case you haven't noticed, kcbrown isn't defending the CGF either.

Tincon
11-14-2013, 9:19 PM
You do realize the subject of this thread is a depublishing denial for bad caselaw, brought to you by the geniuses at CGF?

I'm not an NRA fanboi, I'm a good legal team to fight our legal battles fanboi. If CGF would had hired such counsel early on, we would not be having this conversation.

kcbrown
11-14-2013, 9:34 PM
You do realize the subject of this thread is a depublishing denial for bad caselaw, brought to you by the geniuses at CGF?

Time to put the nail in the coffin on this, at least from my point of view. And I'm open, as always, to convincing counterargument and evidence showing that I'm just flat wrong.

Let's suppose for the moment that this case was argued brilliantly.

What in the world makes you believe the outcome would have been any different?


Oh, you wouldn't have brought the case at all, huh? Why's that? Because there's no precedent on the matter?

What's the difference between arguing a case that has precedent and arguing one that doesn't? Just one thing: a court has opined on the former and not on the latter. That's all.

Some case has to win on the fundamentals. Some case has to be first. But cases involving fundamental Constitutional arguments are not the same as run-of-the-mill cases which explore the far reaches.

If your case will prevail on the fundamentals, then it doesn't matter if there is existing precedent or not. If your case can't prevail on the fundamentals, then precedent will not help you unless you have a very similar fact pattern to the cases that set that precedent.


So what makes this case so incredibly special that it shouldn't have been brought at all? Why can't a case challenging a blanket ban on free speech in public parks prevail on a foundational First Amendment argument? That is ultimately what you must answer here if you argue that this case cannot be won on a foundational 2nd Amendment argument.


And if CGF lost this due to procedural errors, then how does that not impact the decision in such a way as to limit its precedential effects, especially as regards other cases brought on foundational 2nd Amendment grounds?

Put another way: precedence cannot legitimately override the Constitution. If the courts place precedence above the Constitution, then they are erring in doing so. Convincing them of the error of their ways in that regard, of course, is the real trick...

taperxz
11-14-2013, 9:44 PM
I really don't understand why this always comes down to somebody cheerleading. Bottom line: Can we stop? Is is possible to get past all this pointless fanboi garbage and actually come up with a winning strategy?

Get it through your thick skulls: NOBODY IS DEFENDING CGF HERE. Nobody. Yet every time kcbrown (or anybody else) illustrates how badly biased CA judges are against 2A arguments, the first thing you all whine about is CGF.

Stop it. It's tiresome.

I refuse to defend (going forward) the CGF in response, and in case you haven't noticed, kcbrown isn't defending the CGF either.

What it comes down to is that some lawyers on this site predicted the loss because of CGF mistakes.

In fairness, in the past, CGF would actually argue their cases right here on the forum. Which IMHO was a huge mistake, unprofessional, (see Charles Nichols) and used their cases as infomercials to garner financial support from CGN members. Thus, the critiquing of their failings. Again, JMO.

kcbrown
11-14-2013, 9:49 PM
What it comes down to is that some lawyers on this site predicted the loss because of CGF mistakes.

In fairness, in the past, CGF would actually argue their cases right here on the forum. Which IMHO was a huge mistake, unprofessional, (see Charles Nichols) and used their cases as infomercials to garner financial support from CGN members. Thus, the critiquing of their failings. Again, JMO.

Frankly, I have absolutely no problem with critiquing CGF's failings here. That is valuable. It serves as a way of illustrating what not to do, and hopefully it has a beneficial influence on future actions. It reminds me of this:

http://demotivators.despair.com/demotivational/mistakesdemotivator.jpg (http://www.despair.com/mistakes.html)

:D


What I do have a problem with is the claim that everything would magically be all better if someone else had been in the driver's seat. No, it wouldn't. Yeah, it probably would if we were talking about something else, but not this. Not a right that the judiciary detests so much that it is willing to bury it under a thousand feet of solid rock.

Paladin
11-15-2013, 7:09 AM
FGG, what sort of Carry Case do you think SCOTUS would be willing to hear? Would they vote for carry? If so, what type/s of carry?Bump

Does anyone else know if FGG addressed this hot topic? If so, what was FGG's opinion?

taperxz
11-15-2013, 10:12 AM
Frankly, I have absolutely no problem with critiquing CGF's failings here. That is valuable. It serves as a way of illustrating what not to do, and hopefully it has a beneficial influence on future actions. It reminds me of this:



My point was more my opinion that i was expressing.

The bad vibes and the :laugh::laugh::laugh: IMHO come from CGF being so adamant in their victories that they open themselves up to scrutiny.

Notice how M&A never share their thoughts or opinions on current cases being litigated accept for an update here or there.

I am also of the opinion that their opponents were monitoring their moves right here on CGN. You will also notice how FGG punched holes in their arguments. A deputy DA may have had a staffer taking notes and of course passing that on to there "right people"

Notice how Hokanson, Hoffman and Combs don't post much here. That is probably a good strategy moving forward. If there is a forward.

I have talked to Hokanson. He did not go into anything about the cases he is or will be working on but he is a real good guy with his intentions being very honorable.

edwardm
11-15-2013, 10:32 AM
It's too bad you have to keep repeating this. It goes to what I've been saying for a long time about the California (and most of the Federal) judiciary - they are corrupt, ethically if not financially, and remain unwilling to do what is Constitutional, legal, right, or necessary. Those same actors would rather engage in dishonest wordsmithing exercises to maintain their personal and judicial status quo.

Ultimately, the organization bringing a challenge is being forced to play with loaded dice. The only effective method to avoid the situation is careful forum shopping, and that method is rarely available to a plaintiff, and even less so for a defendant.

I have thought long and hard about how this tide turns, and all relevant positive outcomes rely on a shift in public perceptions and judicial temperament which simply will not happen in my lifetime. It will not happen in my child's lifetime. I am rather convinced that it will never happen at all, now. The argument for this opinion is simply one of numbers. Comprehensive discussion would, I think, require a book, perhaps two, to elucidate.

I do not blame any civil rights organization for the position we presently occupy. Whether or not sound strategic decisions were made in the past is unworthy of consideration. Strategy has no bearing on outcomes when those who hold the power of outcomes have barricaded the avenues of argument, reason, and discourse.

I find the placement of blame on NRA, CRPA, CFG, SAF and others, if there is any to be placed at all, to be wasteful. We are far beyond 'reasonable minds may differ', and have stepped into the apparent realm of 'the minds that decide do not care' (those minds being the State and its apparatus).

Frankly, I have absolutely no problem with critiquing CGF's failings here. That is valuable. It serves as a way of illustrating what not to do, and hopefully it has a beneficial influence on future actions. It reminds me of this:

http://demotivators.despair.com/demotivational/mistakesdemotivator.jpg (http://www.despair.com/mistakes.html)

:D


What I do have a problem with is the claim that everything would magically be all better if someone else had been in the driver's seat. No, it wouldn't. Yeah, it probably would if we were talking about something else, but not this. Not a right that the judiciary detests so much that it is willing to bury it under a thousand feet of solid rock.

taperxz
11-15-2013, 10:36 AM
It's too bad you have to keep repeating this. It goes to what I've been saying for a long time about the California (and most of the Federal) judiciary - they are corrupt, ethically if not financially, and remain unwilling to do what is Constitutional, legal, right, or necessary. Those same actors would rather engage in dishonest wordsmithing exercises to maintain their personal and judicial status quo.

Ultimately, the organization bringing a challenge is being forced to play with loaded dice. The only effective method to avoid the situation is careful forum shopping, and that method is rarely available to a plaintiff, and even less so for a defendant.

I have thought long and hard about how this tide turns, and all relevant positive outcomes rely on a shift in public perceptions and judicial temperament which simply will not happen in my lifetime. It will not happen in my child's lifetime. I am rather convinced that it will never happen at all, now. The argument for this opinion is simply one of numbers. Comprehensive discussion would, I think, require a book, perhaps two, to elucidate.

I do not blame any civil rights organization for the position we presently occupy. Whether or not sound strategic decisions were made in the past is unworthy of consideration. Strategy has no bearing on outcomes when those who hold the power of outcomes have barricaded the avenues of argument, reason, and discourse.

I find the placement of blame on NRA, CRPA, CFG, SAF and others, if there is any to be placed at all, to be wasteful. We are far beyond 'reasonable minds may differ', and have stepped into the apparent realm of 'the minds that decide do not care' (those minds being the State and its apparatus).

In the words of Kenny Rogers. You gotta know when to hold em, know when to fold em, now when to walk away and know when to run...

kcbrown
11-15-2013, 10:53 AM
My point was more my opinion that i was expressing.

The bad vibes and the :laugh::laugh::laugh: IMHO come from CGF being so adamant in their victories that they open themselves up to scrutiny.


Yeah. You'll note that I have, on more than one occasion, told them to not be so cocky in the face of a judiciary that behaves the way it does.

I must give points to CGF for at least trying. Where NRA/CRPA at least haven't yet stepped up to the plate, CGF has. Some may claim that it's bad strategy to do so, but in light of my previous "nail in the coffin" message, I'm highly skeptical of that.

At the end of the day, either the 2nd Amendment actually carries weight with the judiciary, or it doesn't. It should be plain to everyone right now that in reality, it doesn't.



I am also of the opinion that their opponents were monitoring their moves right here on CGN. You will also notice how FGG punched holes in their arguments. A deputy DA may have had a staffer taking notes and of course passing that on to there "right people"
Perhaps. But if infringement of this nature upon the right is something the courts are willing to overturn only if challenging counsel is perfect, then what good is the "right" at all? That makes it worthless. It would be one thing if we were talking about a case at the very fringes, where the regulation is something like one requiring a firearm dealer at a gun show to tether his firearms to the table. Something like that doesn't have an immediately apparent answer. But when the "regulation" is an all-out ban on carry in a public place where, if anything, there is an increased need for effective self-defense, a foundational 2nd Amendment argument should obviously win. Failure for such an argument to win against such a regulation as a result of lack of perfection on the part of counsel means one and only one thing: the court is not taking the right in question seriously at all -- it is treating the right as if it doesn't exist.

That is precisely what I expect, but if that is really what's going on, then again, how can the 2nd Amendment be of any real value? The answer is that it can't, and it isn't. It means the 2nd Amendment is a dead letter. It is what I expected, and what I feared.



I have talked to Hokanson. He did not go into anything about the cases he is or will be working on but he is a real good guy with his intentions being very honorable.That's good to know. I actually believe that to be true of most, if not all, of those at CGF as well. If there is something to be learned from this, then I hope it is learned and the lessons put to good use in the future. But frankly, it looks to me like the real lesson is that it's time to start assuming that all future litigation will fail utterly and thus to set in motion the next step.

Tincon
11-15-2013, 11:26 AM
I must give points to CGF for at least trying. Where NRA/CRPA at least haven't yet stepped up to the plate, CGF has. Some may claim that it's bad strategy to do so, but in light of my previous "nail in the coffin" message, I'm highly skeptical of that.

That's complete tripe. The NRA has been trying and winning cases. SF ammo ban, state preemption, vagueness challenge all cases the NRA brought and won. CGF filed a vagueness case that was dismissed at the pleadings stage multiple times. NRA has brought 2A cases as well.

NRA litigation (like Peruta) has not been all victories, but that those cases have at least made it to decisions ON THE MERITS! As far as I know, ALL of CGF's (including the San Mateo case, which was an appeal of a demurrer) have lost at the pleading stage, or at least faced challenges at that stage. NONE of NRA's cases have been even challenged at the pleadings stage (except for Jackson, which was a frivolous attempt to derail the suit that failed and resulted in a published decision HELPING gun rights cases). Nobody can control whether a court will ultimately give a win on the merits, but losing at the pleading stage (repeatedly) is a whole other animal.

Yes, lower courts are ruling against 2A cases on the merits. But CGF cases never even come close to reaching the merits. No matter whether it is vagueness, 2A, preemption, or otherwise. Their cases suck, their lawyers suck, and their strategy sucks. Now we have to deal with bad case law created by them. And I don't give a damn about their good intentions, the road to hell is paved with good intentions. If you don't have the resources to property litigate a strategic constitutional case, stay out of it!

And kcbrown, if you really think all pleadings and arguments will have the same result regardless of the work and talent put into them, you are only demonstrating your lack of knowledge. If you can't figure out the difference between cases won or at least decided on the merits, as opposed to cases that can't even get past the pleadings stage, then you are demonstrating something worse than a lack of knowledge.

And for all your crap about the Second Amendment being dead, why don't you wait for the Supreme Court to weigh in first. Just because they have not granted cert to a few cases, for whatever reason, does not mean they are not going to grant cert to another in the very near future. Your chicken little "the sky is falling oh noes" crap is getting tiresome, and it's pointless.

kcbrown
11-15-2013, 11:33 AM
That's complete tripe. The NRA has been trying and winning cases.


Cases like Jackson? Like Peruta? Where's FGG's favorite emoticon? Oh, right. Here: :laugh:



NRA litigation (like Peruta) has not been all victories, but that those cases have at least made it to decisions ON THE MERITS! As far as I know, ALL of CGF's (including the San Mateo case, which was an appeal of a demurrer) have lost at the pleading stage, or at least faced challenges at that stage.
You'll note that I haven't given CGF points for competence in their efforts, only that they have made the effort.



And kcbrown, if you really think all pleadings and arguments will have the same result regardless of the work and talent put into them, you are only demonstrating your lack of knowledge.
Yeah. Because, you know, a loss is really a win. Right?



If you can't figure out the difference between cases won or at least decided on the merits,
A loss decided on the merits is a loss. Are you now going to try to argue that it's actually a win? Where have I heard such an argument before?



And for all your crap about the Second Amendment being dead, why don't you wait for the Supreme Court to weigh in first. Just because they have not granted cert to a few cases, for whatever reason, does not mean they are not going to grant cert to another in the very near future. Your chicken little "the sky is falling oh noes" crap is getting tiresome, and it's pointless.


Because the Supreme Court has demonstrated that it isn't going to.


But my views are subject to change at any time due to new evidence being presented. If the Supreme Court actually weighs in on fundamental 2A cases, I'll change my tune about them. But not until then. At this point, they've demonstrated a keen disinterest in such cases.

Tincon
11-15-2013, 11:41 AM
Cases like Jackson? Like Peruta? Where's FGG's favorite emoticon? Oh, right. Here: :laugh:


You said NRA has not stepped up to the plate (but apparently CGF has). I say: no the NRA has filed cases, and even with the hostile courts have repeatedly won. And your response is: yeah but they have lost cases too, hahaha? Grow up.


You'll note that I haven't given CGF points for competence in their efforts, only that they have made the effort.


An effort which has never borne fruit, and instead has been consistently counterproductive.


Yeah. Because, you know, a loss is really a win. Right?
A loss decided on the merits is a loss. Are you now going to try to argue that it's actually a win? Where have I heard such an argument before?

I don't know if you are intentionally ignoring my point, or if you really just don't get it. A loss isn't a win. No one is saying that. What I am saying is that if you can't even get past the pleadings stage, it's a reflection of the quality of the counsel, the case, or more likely both.

Because the Supreme Court has demonstrated that it isn't going to.

Can I borrow your psychic powers for a day? How the hell do you know what the Supreme Court is going to do. Hey you know people actually bet on this stuff, you could make a lot of money.

Back to the real world. Do you know what percentage of cases SCOTUS grants/denies cert to?

kcbrown
11-15-2013, 11:46 AM
You said NRA has not stepped up to the plate (but apparently CGF has).


No. I said that CGF has stepped up to the plate where NRA has not. That means it has stepped up to the plate on the issues of the carry ban in parks, on the assault weapons ban, on the roster, on zoning, and possibly other issues as well that NRA has done nothing about.

My claim was not that NRA has not stepped up to the plate at all.

I was afraid my statement might be misinterpreted that way. My bad. It was not my intent.



I don't know if you are intentionally ignoring my point, or if you really just don't get it. A loss isn't a win. No one is saying that. What I am saying is that if you can't even get past the pleadings stage, it's a reflection of the quality of the counsel, the case, or more likely both.

I completely agree.

Surprised?

kcbrown
11-15-2013, 11:49 AM
Can I borrow your psychic powers for a day? How the hell do you know what the Supreme Court is going to do. Hey you know people actually bet on this stuff, you could make a lot of money.


Nothing is certain. There are only the probabilities.

Look, the deal is this: SCOTUS has been presented with multiple carry cases, at least one of which was as pure as you're going to get short of Moore. It has denied cert to every single one of them.

How much of a hint do you need that SCOTUS isn't interested in taking such cases? What is your barometer for measuring these things?



Back to the real world. Do you know what percentage of cases SCOTUS grants/denies cert to?

And if the issues that SCOTUS were granting cert to instead were of equally monumental importance, affecting many tens of millions of people, I might be inclined to agree with the implications of that. But the plain fact of the matter is that instead of granting cert to fundamental 2nd Amendment cases, it has instead been granting cert to address trivialities.

And that blows this argument you're presenting out of the water.

CMonfort
11-15-2013, 11:52 AM
Thank you, Tincon, for referring readers to some of our firm's efforts on behalf of the NRA.

KCBrown, I have no delusions that I will sway you to support our office's efforts on behalf of the NRA in California, but you may wish to read the published appellate opinions in Fiscal v. City and County of San Francisco, Parker v. California, as well as the published federal court ruling in Jackson confirming standing for 2A litigants in the Ninth Circuit.

Regarding the merits of Second Amendment cases in the Ninth Circuit, the Supreme Court is going to issue another opinion on the Second Amendment at some point. Until that happens (and potentially in more than one case), it is not surprising (for a number of reasons that I won't comment on) that 2A cases in the Ninth Circuit (and many other jurisdictions) may lose on the merits.

As I've noted in previous posts before, a number of cases have also been filed in other jurisdictions with the intention of setting precedent in California, including AW challenges supported by law enforcement coalitions in Colorado, NY, and Connecticut.

Decisions on what cases to file, when to file them, in what jurisdictions, and on what grounds are not made on a whim. They are made after thoughtful deliberation among a team of lawyers taking into account all possible judicial and legislative angles and outcomes. But I do appreciate that KCBrown disagrees with ours and the NRA's decisions and would handle litigation decisions differently.

kcbrown
11-15-2013, 12:02 PM
Thank you, Tincon, for referring readers to some of our firm's efforts on behalf of the NRA.

KCBrown, I have no delusions that I will sway you to support our office's efforts on behalf of the NRA in California, but you may wish to read the published appellate opinions in Fiscal v. City and County of San Francisco, Parker v. California, as well as the published federal court ruling in Jackson confirming standing for 2A litigants in the Ninth Circuit.


I think you mistake my meaning.

I am not claiming that NRA/CRPA isn't doing good work. It's doing excellent work! And I fully support it.

No, my claim is simply that even the best quality work is insufficient to prevail against a judiciary that is determined to see the right to keep and bear arms written out of the Constitution, and that there are certain grievances that demand redress that NRA/CRPA has not (yet) addressed and that CGF has at least attempted to (if badly).

Does that mean that it shouldn't be tried? No, not at all! This is only a question of expectations, and of dispelling the notion that everything would be all better if someone more competent than CGF had brought the challenges in question.



Regarding the merits of Second Amendment cases in the Ninth Circuit, the Supreme Court is going to issue another opinion on the Second Amendment at some point. Until that happens (and potentially in more than one case), it is indeed expected (for a number of reasons that I won't comment on) that 2A amendment cases in the Ninth Circuit (and many other jurisdictions) are likely lose on the merits.


Thanks very much for your candor, sir. You are the first person I've seen who has been frank about this (well, aside from some of us in the peanut gallery, that is :D ).

SCOTUS may or may not opine on another 2A case, but at this point, I'm not going to hold my breath given the evidence at hand thus far.



As I've noted in previous posts before, a number of cases filed in other jurisdictions have been filed with the intention of setting precedent in California.It'll be interesting to see if that has the desired effect. I expect it won't, but it has to be tried.

Thanks very much for all your efforts. I really mean that. It is not unappreciated over here. I just wish it could be more effective.

CMonfort
11-15-2013, 12:08 PM
No problem, KC. Also, I edited my post above slightly to include some additional information.

gose
11-15-2013, 12:13 PM
That will look really good, when you are on trial for illegal carry, and the DA shows what you wrote on Calguns to the jury. Your defense lawyer will not like this.

The defense lawyer, however, will appreciate the fact that the deputy giving the San Mateo CCW class stated that CCW holders are exempt from the San Mateo park carry restriction ;)

However, I guess thanks to this decision, he'll probably learn and stop doing that...

edwardm
11-15-2013, 1:24 PM
In the words of Kenny Rogers. You gotta know when to hold em, know when to fold em, now when to walk away and know when to run...

I'm not sure I agree with that. While I would argue the efforts are futile, I could very well be wrong. The stars could align and positive results could issue forth.

My intent was not to say "do nothing". It was more my personal exposition on why we should "expect nothing" at this time. I further stipulate that my opinion is just that - one man's opinion. It is hardly authoritative (nor would I suggest otherwise) and I would be glad if others prove me wrong by way of results, not mere argument.

kcbrown
11-15-2013, 2:47 PM
By the way, does CRPAF (the foundation which is used to fund the litigation) and/or NRA-ILA have a way to donate by way of Amazon purchases in the way that SAF and CGF do? I'd love to point my browser's Amazon link to that so as to donate to CRPAF automatically.

chainsaw
11-15-2013, 2:59 PM
The defense lawyer, however, will appreciate the fact that the deputy giving the San Mateo CCW class stated that CCW holders are exempt from the San Mateo park carry restriction ;)

However, I guess thanks to this decision, he'll probably learn and stop doing that...

Matter-of-fact, that's one of my worries. A real bad defense lawyer might raise the defense that CCW carry is legal in state parks (see the discussion in the CCW forum), and therefore it must logically be legal in *county* parks too. After all, the situation is exactly symmetric between state and county parks, right?

One would hope that the judge would refer any attorney who is dumb enough to use reliance on the word of a San Mateo sheriff's deputy, or on the word of the ranger superintendent in charge of state park rangers as a defense to the bar, for discipline. But that's not the way the real world works.

The fact that state park rangers have stopped enforcing the gun prohibition against people with a CCW permit may be very nice and polite of them, but in my opinion does not indicate the carry is legal in state parks, even with a CCW permit. I think the arguments for that viewpoint have been made in that other thread. If people enamored with carrying decide to ignore those arguments, more power to them. It is their choice to be judged by 12 rather than carried by 6.

EDIT: Where it says *county* parks above, for several hours it wrongly said state parks. Sorry about that.

Librarian
11-15-2013, 3:16 PM
One would hope that the judge would refer any attorney who is dumb enough to use reliance on the word of a San Mateo sheriff's deputy, or on the word of the ranger superintendent in charge of state park rangers as a defense to the bar, for discipline. But that's not the way the real world works.



Your skepticism presumes the state parks reported policy is not based on advice of their legal counsel.

It would be better if they posted their response FROM their counsel, if that is the case, but we do not know whether the response is based on legal advice or the influence of a bad burrito.

SickofSoCal
11-17-2013, 9:02 PM
Declined & dismissed... by a vote of 6-1.

Wow, I guess these Marxist Magistrates can just go whatever they please, and nobody will ever be able to really hold their feet to the fire.


The California Supreme Court has declined to hear a challenge by a gun owner’s group to local ordinances prohibiting possession of guns and other dangerous weapons in public parks and recreational areas.

The justices, at their weekly conference in San Francisco Wednesday, voted 6-1 to leave standing the First District Court of Appeal ruling in Calguns Foundation, Inc. v. County of San Mateo (2013) 218 Cal. App. 4th 661. The court rejected a challenge by Calguns Foundations and its amicus, the National Rifle Association, to a San Mateo County ordinance, which the panel noted was similar to ordinances in other localities, including Los Angeles County.



Case Dismissed

San Mateo Superior Court Judge Raymond Swope dismissed Calguns’ declaratory action, holding that the ordinance does not—to the extent it does not exempt concealed carry permit holders—conflict with the state’s concealed carry law.



A real winner: San Mateo County Superior Court judge Raymond Swope, who was appointed by then-Gov. Arnold Schwarzenegger in 2009. Swope, a vested tax-feeder, and registered Democrat, was previously with the San Mateo County Counsel. He makes at least $180,000 a year.
http://www.almanacnews.com/news/photos/2009/december/30/4224_main.jpg



http://www.metnews.com/articles/2013/conf111513.htm

http://www.almanacnews.com/news/2009/12/30/menlo-park-man-appointed-to-san-mateo-county-superior-court




____________________

mlevans66
11-17-2013, 9:13 PM
....OMG I HATE THIS STATE! Every time I get used to the BS something like this happens :facepalm: When will the sun set on the EPIC fail?

SickofSoCal
11-17-2013, 9:27 PM
....OMG I HATE THIS STATE! Every time I get used to the BS something like this happens :facepalm: When will the sun set on the EPIC fail?

When you leave it... but the Sun is still setting in the west.

frankm
11-17-2013, 9:28 PM
Forward to the future, comrades.

SPUTTER
11-17-2013, 9:30 PM
Damn...another loss?

RonnieP
11-17-2013, 9:43 PM
Well, look on the Bright side. Gang Bangers/Criminals won't be able to carry in Public Parks and Recreational Areas too.

2nd Mass
11-17-2013, 10:08 PM
This is on the litigation forum. Don't think it was dismissed with prejudice so maybe it's waiting on a case that's ahead of it?

Librarian
11-17-2013, 10:55 PM
From the article
S.C. Declines to Hear Challenge to Gun Possession Restrictions

Ruling Allowing Ban on Firearms in Parks Allowed to Stand



By KENNETH OFGANG, Staff Writer



The California Supreme Court has declined to hear a challenge by a gun owner’s group to local ordinances prohibiting possession of guns and other dangerous weapons in public parks and recreational areas.

The justices, at their weekly conference in San Francisco Wednesday, voted 6-1 to leave standing the First District Court of Appeal ruling in Calguns Foundation, Inc. v. County of San Mateo (2013) 218 Cal. App. 4th 661. The court rejected a challenge by Calguns Foundations and its amicus, the National Rifle Association, to a San Mateo County ordinance, which the panel noted was similar to ordinances in other localities, including Los Angeles County.

Only Justice Marvin Baxter voted to hear the case. The high court also denied Calguns’ request for depublication.

Paladin
11-18-2013, 5:12 AM
The California Supreme Court has declined to hear a challenge by a gun owner’s group to local ordinances prohibiting possession of guns and other dangerous weapons in public parks and recreational areas.

The justices, at their weekly conference in San Francisco Wednesday, voted 6-1 to leave standing the First District Court of Appeal ruling in Calguns Foundation, Inc. v. County of San Mateo (2013) 218 Cal. App. 4th 661. The court rejected a challenge by Calguns Foundations and its amicus, the National Rifle Association, to a San Mateo County ordinance, which the panel noted was similar to ordinances in other localities, including Los Angeles County.



Case Dismissed


San Mateo Superior Court Judge Raymond Swope dismissed Calguns’ declaratory action, holding that the ordinance does not—to the extent it does not exempt concealed carry permit holders—conflict with the state’s concealed carry law.

Sounds to me like this case might have been helped if it was brought AFTER a win on RKBA in public.

Well, look on the Bright side. Gang Bangers/Criminals won't be able to carry in Public Parks and Recreational Areas too.I don't know whether to :smilielol5: or (insert cry smilie here) since I heard they found the skeletons of a man, his wife, and their 2 children in some park/forest in SoCal last week.... :mad:

kcbrown
11-18-2013, 10:39 AM
Sounds to me like this case might have been helped if it was brought AFTER a win on RKBA in public.


Why should it have been? Either the right to keep and bear in public exists or it doesn't. If it does, then why would this case be any worse for having that decided than any other? If it doesn't, then it doesn't matter when and where the case is brought.

It's not like bear in public wasn't argued for in this case, right?


If we get bear in public from some other case, then another action can be brought against this ordinance on that basis. If we don't, then we're screwed anyway and this case did no real damage.

This isn't the murky technical limits of the right we're talking about here. This is the fundamental characteristics of it. An average, competent lawyer should be able to win a case like this on the merits without any problem. A court which insists that every last detail be mistake-free is one which is insistent upon dismissing the right in favor of trivialities, for courts are not obligated to dismiss at the pleadings stage due to procedural errors. Such errors merely give them an excuse to do so.

No, had this been a First Amendment case about public speech in public parks, I guarantee that these very same courts would have overlooked every error made and given us the win so fast that you wouldn't have had time to blink. But this right is one the courts hate, and so they will issue rulings against us even when the Supreme Court says they should not (see Osterweil v Bartlett).

rootuser
11-18-2013, 12:39 PM
Why should it have been? Either the right to keep and bear in public exists or it doesn't. If it does, then why would this case be any worse for having that decided than any other? If it doesn't, then it doesn't matter when and where the case is brought.

It's not like bear in public wasn't argued for in this case, right?


If we get bear in public from some other case, then another action can be brought against this ordinance on that basis. If we don't, then we're screwed anyway and this case did no real damage.

This isn't the murky technical limits of the right we're talking about here. This is the fundamental characteristics of it. An average, competent lawyer should be able to win a case like this on the merits without any problem. A court which insists that every last detail be mistake-free is one which is insistent upon dismissing the right in favor of trivialities, for courts are not obligated to dismiss at the pleadings stage due to procedural errors. Such errors merely give them an excuse to do so.

No, had this been a First Amendment case about public speech in public parks, I guarantee that these very same courts would have overlooked every error made and given us the win so fast that you wouldn't have had time to blink. But this right is one the courts hate, and so they will issue rulings against us even when the Supreme Court says they should not (see Osterweil v Bartlett).

The courts feelings are well known and documented. Thus cases like this are ill-advised.

Paladin
11-18-2013, 2:17 PM
Why should it have been? Either the right to keep and bear in public exists or it doesn't. If it does, then why would this case be any worse for having that decided than any other? If it doesn't, then it doesn't matter when and where the case is brought.

It's not like bear in public wasn't argued for in this case, right?


If we get bear in public from some other case, then another action can be brought against this ordinance on that basis. If we don't, then we're screwed anyway and this case did no real damage.We'll have to waste time, money, manpower to try it again after we, hopefully, get carry.

This should have waited until after we won carry when the odds would have been more in our favor.

OT Q: Is there some way to sign up w/CA9 to get an email/text notification wen they publish Richards, Peruta, and/or Baker?

kcbrown
11-18-2013, 2:32 PM
The courts feelings are well known and documented. Thus cases like this are ill-advised.

That logic applies to all RKBA cases. There are no exceptions to it.

Hence, on what basis would you decide whether or not to bring a case?

Tincon
11-18-2013, 2:44 PM
That logic applies to all RKBA cases. There are no exceptions to it.

Hence, on what basis would you decide whether or not to bring a case?

You know my thoughts: when I had a team qualified to make that determination and, along with the resources required, take it to the highest court and win.

kcbrown
11-18-2013, 3:01 PM
We'll have to waste time, money, manpower to try it again after we, hopefully, get carry.


Are you really going to wring your hands about the loss of a bit of time, money, and manpower in the face of an opportunity to secure the right to keep and bear arms?



This should have waited until after we won carry when the odds would have been more in our favor.
What would your opinion have been if we had won this case? Would you suddenly be singing the praises of the plaintiffs? Or would you still be insisting that the case shouldn't have been brought? Were you among those who thought that this case was a bad idea at the point in time it was brought? Why would you not be similarly opposed to the carry cases on the same grounds at the time they were brought?

The only people who really have a leg to stand on with respect to all this are the ones who would believe the case shouldn't have been brought even if it had been won. In other words, those who were opposed to it independently of the outcome.


Many here are quick to sing the praises of those who succeed, and quick to denigrate those who fail. But one does not succeed if one does not try.

Could this particular case have been done better? Probably. Would it have made any difference? Almost certainly not. Would it have been better to not have tried at all? Nobody (except, perhaps, FGG) can honestly answer that without knowing the outcome first, and that fact makes such an answer worthless.


Are you one who believes that if you know ahead of time that the judiciary hates the right, that you should then leave all infringing laws unchallenged? If so, then what is your basis for supporting the carry cases? If not, then what is your real basis for opposing this particular action after the fact? You cannot oppose it on the basis that it was lost, because that is a post hoc ergo propter hoc argument, i.e. a logical fallacy.

Either we have the right or we don't. You can't get the answer to that without first asking the question. You can't secure the right without attempting it. If we have the right, then this loss means nothing, for securing the right later means we'll be able to challenge it again. If we don't have the right, then this loss means nothing, for failure to secure the right means that the state can and will do as it pleases unopposed.

If the failure here was with respect to the foundational 2nd Amendment argument that was made, then there would be real reason for criticism. I've seen no such criticism. All I've seen so far are criticisms about what amounts to trivia. Could those things have been handled better? Almost certainly. Should it really matter in the face of a fundamental 2nd Amendment argument? Absolutely not.

If a fundamental 2nd Amendment argument cannot even prevail in the face of trivialities like procedural errors, it most certainly cannot prevail against anything more substantive, like the merits of the opposition's arguments (whatever those might be).


So at the end of the day, those who criticize this case may be entirely correct in their criticisms, but are still failing to address what really matters: whether or not we really do have the right to keep and bear arms in public in the eyes of the judiciary.

Either we have the right, or we don't. Which is it?

kcbrown
11-18-2013, 3:07 PM
You know my thoughts: when I had a team qualified to make that determination and, along with the resources required, take it to the highest court and win.

Understood. But it leaves some questions open.

For instance: how are you determining qualification here? How are you determining the amount of resources required? The latter is almost certainly easier to determine than the former.

Who in the country has successfully litigated and won brand new civil rights? Is it not reasonable to believe that the means of winning a brand new right will be very different than those used to win one that has already been acknowledged by the judiciary? Are not the qualifications for the former different than for the latter?

Tincon
11-18-2013, 4:13 PM
There are a lot of reasonable ways to make the determination. I've listed them before: Experience and consistent record of success would probably be the two most obvious for qualification. More subjectively, I'd add quality of work, but obviously that is difficult to quantify (apart from success record). Never being able to get past the pleading stage in an actual trial is a good example of lack of qualification.

For resources, figure a a bankroll of at least $250k per case (ballpark, may be some economy of scale, and some cases much more expensive to try), and a staff of at least three qualified attorneys (see above), and full back-office support.

I don't see why winning a "brand new right" whatever that even means, would be a qualifier, or at least not more important than a consistent record of success. But it is a somewhat subjective termination. Emphasis on somewhat.

kcbrown
11-18-2013, 4:38 PM
There are a lot of reasonable ways to make the determination. I've listed them before: Experience and consistent record of success would probably be the two most obvious for qualification.


I think you might have missed the nuance of my question.

The nature of what is being litigated is different than anything that has come before since the civil rights movement (correction: I suppose the abortion litigation also qualifies). How are you going to reasonably determine qualification for something that is so fundamentally different?



More subjectively, I'd add quality of work, but obviously that is difficult to quantify (apart from success record). Never being able to get past the pleading stage in an actual trial is a good example of lack of qualification.
I generally agree if the measure of "getting past the pleading stage" is being made in the non 2nd Amendment arena. You cannot use such a metric in circumstances where the pleadings stage can be, and probably is being, used as an excuse to dismiss the case because the court in question is actively opposed to hearing it.

Which is to say, you have to base that measurement on the normal litigation situation. If the counsel in question has a history of not getting cases past the qualification stage with respect to non-2A cases, then that indeed would be grounds for disqualification of said counsel.

But what if the counsel in question is able to regularly get cases past the pleadings stage in every other type of case except the 2A ones?

I don't know anything about the counsel CGF hires. For all I know, that counsel may indeed have general problems getting cases past the pleadings stage. But if that's true, I've not seen anyone present evidence of such. Why would said counsel be successful in getting non-2A cases past the pleadings stage but not 2A cases?



I don't see why winning a "brand new right" whatever that even means, would be a qualifier, or at least not more important than a consistent record of success. But it is a somewhat subjective termination. Emphasis on somewhat.Simple. Winning a "brand new right" means getting the judiciary to recognize a far-reaching right that it had never in its history recognized before. That is categorically different than merely exploring the boundaries of a long-recognized right.

To use what is sure to be a poor analogy, you are using the qualification tests for an engineer to decide who you should hire for the position of lead scientist.

It's why I asked the question that I did: who in the country has successfully brought cases and won brand new rights as a result? Is that not a more relevant question than who has a record of bringing successful cases in general?


If a record of success is really what's important here, then does it not follow that we should be looking to hire people who have long histories of success in, say, the 1st Amendment arena, in which there is much more successful action? What makes NRA/CRPA's staff of lawyers stand out against the best of that crowd? I'm not saying that anyone is actively looking for 1st Amendment litigators of the type I speak of (though that might prove to be a worthwhile approach), only that if your metric is truly that of success, then it follows that the place to look is not in the 2nd Amendment sphere, but a sphere in which consistent success has been achieved.

curtisfong
11-18-2013, 5:31 PM
But what if the counsel in question is able to regularly get cases past the pleadings stage in every other type of case except the 2A ones?


The answer is the same: if you expect to win a 2A case in CA, at minimum, your performance in the pleading stage has to be perfect.

Since no lawyer or case or plaintiff is perfect, do not expect to win a 2A case in CA. Every i must be dotted, every t crossed; the fundamental "facts" (the right to bear arms is incorporated against the states) in the case are entirely irrelevant.

The flip side is also true; to defeat a 2A case in CA, you do not have to be even marginally competent. You just have to show up. The judge will ignore all flaws in your defense and help you out whenever he can; if in doubt, he/she will always "defer to the legislature" and assume whatever flaws the defense has are irrelevant, since the fundamental "facts" (guns are dangerous in the hands of everybody except the police and politicians) of the case determine the outcome.

The only cases you can win if your lawyers, case, or plaintiff isn't perfect is one that doesn't rely directly on a 2A argument; rather, you rely on preemption, vagueness, or some other technicality completely unrelated to the 2A.

Tincon
11-18-2013, 5:33 PM
The nature of what is being litigated is different than anything that has come before since the civil rights movement (correction: I suppose the abortion litigation also qualifies). How are you going to reasonably determine qualification for something that is so fundamentally different?


While I would not hire a tax lawyer to handle a criminal defense, I would say experience/success in constitutional law (one area) generally carries over to another. Add to that (here) experience/success in firearms cases and I think you have a good team. Just because we are in new territory with this particular civil right, does not make this kind of law practice "fundamentally different".


I generally agree if the measure of "getting past the pleading stage" is being made in the non 2nd Amendment arena. You cannot use such a metric in circumstances where the pleadings stage can be, and probably is being, used as an excuse to dismiss the case because the court in question is actively opposed to hearing it.

Sure you can. Everyone is fighting against the same potential bias, so in fact the greater the challenge the greater the import of overcoming it. These courts are great for separating the wheat from the chaff when it come to 2A litigators.

I direct you to the present preemption case and vagueness cases that CGF had dismissed at the pleadings stage. NRA’s lawyers have published appellate opinions in preemption and vagueness cases in California, and even secured a ruling that heightened vagueness review applies to gun laws. And for pure 2A, they secured a published standing ruling confirming a favorable “standing” standard for 2A litigants in the 9th Circuit. And that was in a case seeking to secure the ability to purchase hollow-point ammunition, hardly an identical case to Heller. NRA had to deal with the same courts and the same potential bias as CGF. This is apples to apples. NRA wins, CGF loses.

If you can’t see the difference in track records in vagueness cases, preemption cases, and 2A cases, in terms of how the cases were litigated and which cases were chosen to bring in which courts and on which grounds, I don’t know how to help you KC.


If a record of success is really what's important here, then does it not follow that we should be looking to hire people who have long histories of success in, say, the 1st Amendment arena, in which there is much more successful action? What makes NRA/CRPA's staff of lawyers stand out against the best of that crowd? I'm not saying that anyone is actively looking for 1st Amendment litigators of the type I speak of (though that might prove to be a worthwhile approach), only that if your metric is truly that of success, then it follows that the place to look is not in the 2nd Amendment sphere, but a sphere in which consistent success has been achieved.

Do you know what a US Solicitor General is?

curtisfong
11-18-2013, 5:41 PM
Do you know what a US Solicitor General is?

An overpaid Public Defender of the calibre no ordinary defendant will ever get :)

kcbrown
11-18-2013, 6:08 PM
While I would not hire a tax lawyer to handle a criminal defense, I would say experience/success in constitutional law (one area) generally carries over to another.


Then you agree: we should be looking for 1st Amendment litigators with the best track record out there.


Add to that (here) experience/success in firearms cases and I think you have a good team. Just because we are in new territory with this particular civil right, does not make this kind of law practice "fundamentally different".
Yes, it does.

With litigation involving a long-recognized civil right, you have a lot that you can fall back on when arguing your case. With litigation involving forging the path for a brand new civil right, you not only don't have any of that, you have the additional burden of convincing the court that the right actually exists at all!

Now, you'd normally expect the mere enumeration of this civil right to take care of the latter. But it quite clearly does not in the face of a judiciary that does not want to recognize it, something that the vast bulk of the evidence quite clearly illustrates is true of this judiciary.



Sure you can. Everyone is fighting against the same potential bias, so in fact the greater the challenge the greater the import of overcoming it. These courts are great for separating the wheat from the chaff when it come to 2A litigators.
Then answer me this: why would counsel in question be successful in regularly getting non-2A cases past the pleadings stage but not 2A cases?



I direct you to the present preemption case and vagueness cases that CGF had dismissed at the pleadings stage. NRA’s lawyers have published appellate opinions in preemption and vagueness cases in California, and even secured a ruling that heightened vagueness review applies to gun laws. And for pure 2A, they secured a published standing ruling confirming a favorable “standing” standard for 2A litigants in the 9th Circuit. And that was in a case seeking to secure the ability to purchase hollow-point ammunition, hardly an identical case to Heller. NRA had to deal with the same courts and the same potential bias as CGF. This is apples to apples. NRA wins, CGF loses.
I certainly don't disagree with you on that. But it nevertheless leaves my question unanswered: why is counsel in question (ostensibly) able to get non-2A cases past the pleadings stage but not 2A cases? What makes 2nd Amendment litigation so special that it requires specialized tactics just to get past the pleadings stage?

Are you going to argue that a solid 1st Amendment litigator would encounter the same troubles? If not, why not?



If you can’t see the difference in track records in vagueness cases, preemption cases, and 2A cases, in terms of how the cases were litigated and which cases were chosen to bring in which courts and on which grounds, I don’t know how to help you KC.
I do see the difference. But my question isn't merely about if there is a difference, but also why it exists. I am trying to get to root causes here.



Do you know what a US Solicitor General is?Yeah. Someone who works for the federal government, the very entity that receives the vast bulk of the deference of the court system. How does a solid track record when the odds are deeply in your favor translate to qualification when the odds are almost entirely against you?

ETA: Admittedly, being on the "inside" like that might give one some unique and useful insights for fighting against the government later, and that is valuable.

Tincon
11-18-2013, 6:27 PM
Then you agree: we should be looking for 1st Amendment litigators with the best track record out there.


No, I don't think we need to look for anyone. We already have a great team on the job, IMO. I have not been convinced otherwise. And we have some 3rd stringers messing things up. The problem is not a lack of talent, it's an abundance of hacks. I'm not really worried about figuring out how to explain to you WHY the two are different, other than that one wins and the other does not. The proof is in the pudding. They are different, CGF is hurting our cause, and if they care about it at all they should stop.

LoneYote
11-18-2013, 6:47 PM
The problem is not a lack of talent, it's an abundance of hacks. I'm not really worried about figuring out how to explain to you WHY the two are different, other than that one wins and the other does not.

Sounds like a ratio issue. So in fact hiring more "great teams" to attack more often would do several things.
A. Speed up the process making "hacks" less likely to take matters into their own hands.
B. Secure more favorable rulings to counter and over come any damage from said "hacks"
C. Provide a higher degree of general intimidation against attack

kcbrown
11-18-2013, 7:18 PM
No, I don't think we need to look for anyone. We already have a great team on the job, IMO. I have not been convinced otherwise. And we have some 3rd stringers messing things up. The problem is not a lack of talent, it's an abundance of hacks. I'm not really worried about figuring out how to explain to you WHY the two are different, other than that one wins and the other does not. The proof is in the pudding. They are different, CGF is hurting our cause, and if they care about it at all they should stop.

It is easy to win when the facts of the case (e.g., Doe v San Francisco, Fiscal) are essentially identical to that of a case that was won at the Supreme Court.

What 2nd Amendment cases have been won by the team you speak so highly of that have expanded the right beyond the home?

None? Yeah, that's what I thought.

Guess what? That's precisely the track record of the teams you denigrate. Now, I certainly admit that not making it past the pleadings stage is cause for concern, as long as the reason for that has to do with major errors on the part of counsel and not trivialities. And while there appears to be some difference at that level, even CGF has managed to get past that stage more than once, else Richards wouldn't be at the 9th Circuit and Peña would have been dismissed on procedural grounds.


It's easy to say that you have a winning track record when you're not attempting to break any new ground. Win while doing that, and I'll give a lot more weight to your claims. Not until then. Until then, as far as I'm concerned, the team you're cheerleading for is untested. Well, actually, that's not strictly true. They, too, have failed when attempting to expand the right beyond the home.

And that raises the very real question: if the people we're talking about are really so incredibly competent, then why haven't they won any of their cases that attempt to expand the right beyond the home?

CMonfort
11-18-2013, 8:15 PM
It is easy to win when the facts of the case (e.g., Doe v San Francisco, Fiscal) are essentially identical to that of a case that was won at the Supreme Court.

Fiscal was pre-Heller, and had nothing to do with it in any way, shape or form.

Also not sure if you ever read abut the heightened SOR for gun laws in vagueness challenges in the recent Parker opinion. That case also wasn't identical or even similar to Heller.

What 2nd Amendment cases have been won by the team you speak so highly of that have expanded the right beyond the home?

Two cases are currently pending before the Ninth Circuit Court of Appeals. We can't make the courts go any faster than they do. I'm also not sure if you caught the standing ruling in Jackson re sales of HP ammo which isn't limited to the home nor is identical to Heller. That case is also pending before the Ninth.

There are also a litany of cases working there way up through the courts on the merits towards the Supreme Court on other issues. Everything ranging from licensing schemes to DROS fees to AW bans to magazine bans, to name a few.

I appreciate that you would handle things differently if you were running the show. And I've got to hand it to you, KC. After a long day at the office you provide for some much needed comic relief when I have a chance to browse this forum. :)

kcbrown
11-18-2013, 8:53 PM
Fiscal was pre-Heller, and had nothing to do with it in any way, shape or form.


My apologies, you're right. That case was won on state preemption grounds.

That means it doesn't count as a 2nd Amendment win at all.



Also not sure if you ever read abut the heightened SOR for gun laws in vagueness challenges in the recent Parker opinion. That case also wasn't identical or even similar to Heller.
But it also wasn't a 2nd Amendment case, was it? It was a vagueness challenge. It didn't expand the right to keep and bear arms outside the home whatsoever.

ETA: I may have been too unkind in that last. I'm reading the Parker decision now. While it may not have expanded the 2nd Amendment beyond the home in the usual way, it would be a disservice of me to be so dismissive of Parker's positive effects.

ETA2: Getting the court, and the California Supreme Court at that, to recognize ammunition as having 2nd Amendment protection is actually an astonishing feat. My hat's off to you guys on that one. Wow. http://photography-on-the.net/forum/images/smilies/icon_eek.gif



Two cases are currently pending before the Ninth Circuit Court of Appeals. We can't make the courts go any faster than they do. I'm also not sure if you caught the standing ruling in Jackson re sales of HP ammo which isn't limited to the home nor is identical to Heller. That case is also pending before the Ninth.
Yes, and those cases are pending as a result of being losses at the district level. Not wins.

Either losses at the district level count, or they don't. Which is it? Note that this statement isn't really directed at you, Clint, but rather Tincon and others.



There are also a litany of cases working there way up through the courts on the merits towards the Supreme Court on other issues. Everything ranging from licensing schemes to DROS fees to AW bans to magazine bans, to name a few.
Which of those cases were brought by NRA/CPRA? Would you mind naming the cases in question?



I appreciate that you would handle things differently if you were running the show.
Not quite as differently as one might expect, actually. The only real thing I'd change is that I'd be bringing a lot more cases in parallel, and would have done so immediately after we got the decision in McDonald.



And I've got to hand it to you, KC. After a long day at the office you provide for some much needed comic relief when I have a chance to browse this forum. :)Glad I'm good for something. :D


Look, the bottom line is this: the cases that CGF has been bringing are different than those brought by NRA/CRPA (at least until relatively recently) because they are attempting to expand the right to keep and bear arms beyond the confines of the home. And for those cases that NRA/CRPA has brought that attempt to do the same thing, the track record is nearly identical in terms of wins versus losses.

I must again emphasize that I'm not against NRA/CRPA whatsoever. I'm fully behind their efforts, behind your efforts. What I'm not behind is the intense criticism of other players that are attempting to go beyond what NRA/CRPA have done (at least until recently) by those who champion a team that, at the end of the day, has no better a success rate for the same type of effort.

Do some of the efforts of CGF merit criticism? Almost certainly. But from where I sit, the main error CGF made was with respect to setting expectations, by tooting their own horns loudly and widely, only to be smacked down by the courts in the very same way those courts will smack down the best we all have to offer. Clint, you said it yourself: you expect to lose on the merits in the 9th Circuit. And that's despite having what some people here are saying is the best team anywhere. If there is one critical difference that I've seen so far, it's that you're at least honest about setting expectations. I find that to be very valuable and refreshing.

I'm really glad you guys are on our side. But I'm also glad we have CGF on our side. CGF may have made some errors, but I'm hopeful that they have learned from them. Only time will tell on that.

This is no time for dick waving contests. This is a time for all hands on deck. The clock is ticking and we have very little time left before it runs out. Once it runs out, we are done. That is why I would bring a lot more parallel cases. There simply isn't time for anything else.

CMonfort
11-18-2013, 9:25 PM
You crack me up. I happen to disagree with the large majority of your comments that I have seen on on CGN which I won't get into on a public forum, but you are certainly entitled to your opinions.

I am curious whether you argue about the best way to perform root canals with your dentist or about the best way to perform a new surgery with a surgeon. I know, I know, your dentist hasn't lost teeth and the surgeon hasn't lost patients.

Standing by for a response with way too many italics. :)

Thanks again for your support. I'll return to posting factual and legal updates when appropriate and leave the peanut gallery for you reign over.

kcbrown
11-18-2013, 9:36 PM
You crack me up. I happen to disagree with the large majority of your comments that I have seen on on CGN which I won't get into on a public forum, but you are certainly entitled to your opinions.


Frankly, I am entirely open to disagreement. I am open to reasoned discourse. If there are errors in my logic, I want to know about them. If there are errors in my data, I want to know about them as well.



I am curious whether you argue about the best way to perform root canals with your dentist or about the best way to perform a new surgery with a surgeon. I know, I know, your dentist hasn't lost teeth and the surgeon hasn't lost patients.
No, but I can observe the results of those operations for myself and see whether or not the end results are significantly better on the part of one surgeon than on the other. I can further discern for myself whether or not the operations are being performed at a rate sufficient to save the population in need. Those things do not require the kind of internal knowledge that performance of the operations themselves do.



Standing by for a response with way too many italics. :)
If you have in mind a more agreeable way that I can use to emphasize that which I wish to emphasize, I am all ears. :D




Thanks again for your support. I'll return to posting factual and legal updates when appropriate and leave the peanut gallery for you reign over.Heh. Well, you needn't bow out here if you don't wish to. Again, if there are errors in my logic or my data, I want to know about them. If you're in a position to point them out, then please do so. Nobody else has, at least that I've seen.



ETA: Ooops. I forgot to use italics. :D

fizux
11-18-2013, 9:49 PM
Just to steer back towards litigation (sorry, no italics)...
OT Q: Is there some way to sign up w/CA9 to get an email/text notification wen they publish Richards, Peruta, and/or Baker?
Yes, log into CM/ECF and file a doc in the case. CM/ECF will then email you every time a doc is filed, and you'll get a link to view each doc once for free.

dave_cg
11-19-2013, 6:55 AM
You crack me up. I happen to disagree with the large majority of your comments that I have seen on on CGN which I won't get into on a public forum, but you are certainly entitled to your opinions.

I am curious whether you argue about the best way to perform root canals with your dentist or about the best way to perform a new surgery with a surgeon. I know, I know, your dentist hasn't lost teeth and the surgeon hasn't lost patients.

Standing by for a response with way too many italics. :)

Thanks again for your support. I'll return to posting factual and legal updates when appropriate and leave the peanut gallery for you reign over.

You are aware, I'm sure, that even 100% correct information posted with a certain amount of attitude can still sound 100% childish. Is this supposed to increase the amount of respect this forum has for you?

I appreciate that there are many things that you can not say about active litigation in a public forum. Still, you might try to keep your comments constructive within the bounds of what you *can* say.

taperxz
11-19-2013, 7:16 AM
You are aware, I'm sure, that even 100% correct information posted with a certain amount of attitude can still sound 100% childish. Is this supposed to increase the amount of respect this forum has for you?

I appreciate that there are many things that you can not say about active litigation in a public forum. Still, you might try to keep your comments constructive within the bounds of what you *can* say.

HUH???


:facepalm:

curtisfong
11-19-2013, 7:25 AM
Somebody is confusing general criticism of the legal system with criticism of specific lawyers.

Clint: please don't misunderstand what kcbrown is trying to say.

No matter how (allegedly) incompetent CGF is, or how (allegedly) competent other legal organizations are, he's saying attempts to explicitly expand 2A rights in CA will always be riskier than attempts to defeat specific legislation through vagueness, preemption, or other (non-2A) technicalities. I don't see how you can disagree with this position, unless you are taking things that he says personally.

That is to say: flawed (in a non-2A sense) anti-gun laws are possible (but still difficult) to defeat, but flawed (in a non-2A sense) 2A cases are trivial to defeat.

dave_cg
11-19-2013, 8:21 AM
HUH???


I'm sure learned counsel has the ability to respond to criticism without it sounding like elementary school yard taunting. I don't come here for the pig wraslin'.

curtisfong
11-19-2013, 9:05 AM
I'm sure learned counsel has the ability to respond to criticism without it sounding like elementary school yard taunting. I don't come here for the pig wraslin'.

IMO kc is not criticizing M&A or the NRA here, that I can tell. And there is absolutely no reason for him to do so.

Now, Clint might disagree with what kc is saying about the court system; but that is an entirely different topic.

sholling
11-19-2013, 10:08 AM
I am curious whether you argue about the best way to perform root canals with your dentist or about the best way to perform a new surgery with a surgeon. I know, I know, your dentist hasn't lost teeth and the surgeon hasn't lost patients..
I'm not sure I'd go to see a surgeon who's patients seem to as often as not to die on the table. I'd have to ask myself if that surgeon specializes in hopeless (but still billable) cases or simply lacks the skillset and/or thoroughness necessary to save the patient's life, or if maybe he just gets over confident and sloppy sometimes. Of course it's just possible that KC is right and that God (judges) hates all of his patients but to me that would seem unlikely to be the only reason that most of this mythical doctor's patients keep dying on the table.

That aside, you may be the greatest legal minds of all time but there has to be a reason that we keep losing cases like this. Perhaps you could educate us about why? FGG puts forth his theories, KC has his, and with all due respect I'd like to hear yours.

SMR510
11-19-2013, 11:05 AM
I'm not sure I'd go to see a surgeon who's patients seem to as often as not to die on the table. I'd have to ask myself if that surgeon specializes in hopeless (but still billable) cases or simply lacks the skillset and/or thoroughness necessary to save the patient's life, or if maybe he just gets over confident and sloppy sometimes. Of course it's just possible that KC is right and that God (judges) hates all of his patients but to me that would seem unlikely to be the only reason that most of this mythical doctor's patients keep dying on the table.

That aside, you may be the greatest legal minds of all time but there has to be a reason that we keep losing cases like this. Perhaps you could educate us about why? FGG puts forth his theories, KC has his, and with all due respect I'd like to hear yours.

Everyone is missing one thing in the Surgeon analogy. If this procedure typically has a 50% mortality rate (very risky) but this Surgeon has an average of a 40% mortality rate and that Surgeon has a 60% mortality rate that is one thing. It is another thing to compare two Surgeons who never perform the same procedures.

Another thing to keep in mind is that without this risky surgery you have a 100% chance of dying...I have no idea why people are criticizing CGF. In my eyes they have been the ones who have been fighting for us the whole time. I don't care if you disagree with their tactics or strategy but its hard to criticize people that are working very hard for you. When the gun rights battle in CA changes day to day its hard to anticipate the best move, that is for people who know more about this than I do.

Anyone who is complaining, I suggest that if you can do better you go ahead and do so. Obviously cooperation between different groups is probably the best strategy but by all means if you can single-handedly address all the 2A issues in CA I would love for you to do so.

taperxz
11-19-2013, 11:10 AM
Everyone is missing one thing in the Surgeon analogy. If this procedure typically has a 50% mortality rate (very risky) but this Surgeon has an average of a 40% mortality rate and that Surgeon has a 60% mortality rate that is one thing. It is another thing to compare two Surgeons who never perform the same procedures.

Another thing to keep in mind is that without this risky surgery you have a 100% chance of dying...I have no idea why people are criticizing CGF. In my eyes they have been the ones who have been fighting for us the whole time. I don't care if you disagree with their tactics or strategy but its hard to criticize people that are working very hard for you. When the gun rights battle in CA changes day to day its hard to anticipate the best move, that is for people who know more about this than I do.

Anyone who is complaining, I suggest that if you can do better you go ahead and do so. Obviously cooperation between different groups is probably the best strategy but by all means if you can single-handedly address all the 2A issues in CA I would love for you to do so.

Maybe because they are not even licensed to practice medicine "in the analogy"? Let alone being a surgeon?

sholling
11-19-2013, 11:58 AM
Anyone who is complaining, I suggest that if you can do better you go ahead and do so. Obviously cooperation between different groups is probably the best strategy but by all means if you can single-handedly address all the 2A issues in CA I would love for you to do so.
The point that you are missing is that when the "Right People" blow it they establish new case law that can be used against us later. The surgeon analogy would be a surgeon that keeps the rotting stinking infected copses of his past failures stacked up in his operating room ready to give the next patient a fatal infection.

Don't get me wrong, we need great attornies to bring good solid cases and lots of them, but those cases need to be more carefully selected and much better planned and meticulously executed or we're going backwards with each loss. We also need to get out of the habit of filing clones of losing cases and try new things. There has to be a reason (beyond the theory that 'the gods hate us') that we keep losing and the only sure way to find it is to have an exceptional outside attorney find the holes in our cases so we can fix them before the cases are filed. Seriously, if FGG can poke holes in our cases, don't you think that the city, county, and state attornies are fully capable of doing the same thing?

sholling
11-19-2013, 12:12 PM
Maybe because they are not even licensed to practice medicine "in the analogy"? Let alone being a surgeon?
Does it take an MD to notice that a surgeon's patients consistently die? How about an ASC certified mechanic certificate to tell if a car is burning? Maybe a pilots license to notice that a pilot runs out of gas and crash lands almost every time that he goes up?

It may take another doctor to uncover the reasons behind a surgeon's high failure rate, or an ASC mechanic to discover why the car bust into flames, or the FAA to uncover why the pilot runs out of gas, but I'm not closing my eyes to a high failure rate, nor am getting into a burning car, or flying with Crash Corigan. All that I'm asking for is outside case analysis by a skeptical but highly respected attorney so that we have all of the holes filled, and all of the I's dotted and T's crossed before we go to trial.

taperxz
11-19-2013, 12:30 PM
Does it take an MD to notice that a surgeon's patients consistently die? How about an ASC certified mechanic certificate to tell if a car is burning? Maybe a pilots license to notice that a pilot runs out of gas and crash lands almost every time that he goes up?

It may take another doctor to uncover the reasons behind a surgeon's high failure rate, or an ASC mechanic to discover why the car bust into flames, or the FAA to uncover why the pilot runs out of gas, but I'm not closing my eyes to a high failure rate, nor am getting into a burning car, or flying with Crash Corigan. All that I'm asking for is outside case analysis by a skeptical but highly respected attorney so that we have all of the holes filled, and all of the I's dotted and T's crossed before we go to trial.

Obvious symptoms that don't need a diagnosis.

When it comes to the 2A i want the best most qualified in legal exploratory law. or "medicine" for the analogy.

CMonfort
11-19-2013, 12:59 PM
My apologies if I put anyone off with my comments. My banter with KC was intended in jest, but I realize it may not have come off that way.

I certainly do not think we are infallible and in no way did I mean to imply that.

I appreciate very much the support that is shown for our office on these forums and look forward to continuing to provide updates on various issues and cases.

BTW the official alert for the lawsuit that was filed today in San Francisco to secure protections for 10+round magazines is now posted here (http://www.calguns.net/calgunforum/showthread.php?t=854136):

Apocalypsenerd
11-19-2013, 1:22 PM
It should be noted that CGF is losing in a manner that FGG is able to accurately predict. Clearly, FGG is very knowledgeable about how the courts will rule when he has been able to consistently predict losses/wins and what the judges ruled on.

Losing "because the courts in CA are anti-2A" is a pretty easy prediction to make. Predicting, with detail, the way a judge will rule and with what reasoning, is an entirely different matter. FGG has done this multiple times and many months in advance to boot.

CGF is creating a VERY visible track record here. They post what they are going to do and then argue with FGG about how he's wrong. More often than not, it seems, he is right. Since his ability to predict losses/wins goes beyond the outcomes, to reasons for those outcomes, it stands to reason that the results are predictable by people as knowledgeable as FGG. Why then, has the CGF team been unable to predict what a false, internet persona can?

sholling
11-19-2013, 1:55 PM
Obvious symptoms that don't need a diagnosis.

When it comes to the 2A i want the best most qualified in legal exploratory law. or "medicine" for the analogy.

The results of the park carry case and the appeal isn't a fairly obvious symptom?

kcbrown
11-19-2013, 2:01 PM
IMO kc is not criticizing M&A or the NRA here, that I can tell. And there is absolutely no reason for him to do so.

Now, Clint might disagree with what kc is saying about the court system; but that is an entirely different topic.

Inasmuch as much/most of my commentary is about the judiciary and not counsel, and Clint has said that he disagrees with the bulk of what I've written, I have to presume that he's talking about my comments about the judiciary.

It's all good. I have immense (ooops, there I go using italics again!) respect for Clint and his team, and am ecstatic that they're bringing the cases they're bringing. I just fear it's far too little and far too late. But at least they don't seem to be underestimating the opposition.


A number of us here have been overconfident to the point of arrogance. CGF has perhaps been more vocal than others in that respect, but there are plenty of people here who share that arrogance. You can see it every time someone calls the opposition idiots. I have warned against that many times. The opposition may not be able to or willing to arrive at the logically correct conclusions when debating us, but they know exactly how to get what they're after. Presuming idiocy on the part of the enemy is monumentally stupid. We are now seeing the fruits of that.

If we're going to win, we're going to have to dispense with this incredibly shortsighted notion that the opposition is stupid. The opposition is not stupid. It is very, very good at getting what it wants, and holds far more power than we do. That is NOT an accident.

taperxz
11-19-2013, 2:09 PM
The results of the park carry case and the appeal isn't a fairly obvious symptom?

No it wasn't! SMSD Has an obligation to print restrictions on the back of a CCW. They had further advised that even though the park posted "no firearms" it didn't not apply to a CCW holder.

It would have been better to iron this out after a carry ruling or at least have a ccw holder actually get arrested for it. This way the Sheriff would have to testify that they have the ultimate authority over the issuance of the license.

All that happened here is that someone stirred the pot.

Or! For affect: Attempted brain surgery without reason and proper knowledge of the brain.

kcbrown
11-19-2013, 2:26 PM
No it wasn't! SMSD Has an obligation to print restrictions on the back of a CCW.


On what basis? There is nothing in the law obligating an issuing entity to put restrictions on the back of a CCW.

Having the power to do something does not create an obligation to do it.

taperxz
11-19-2013, 2:33 PM
On what basis? There is nothing in the law obligating an issuing entity to put restrictions on the back of a CCW.

Having the power to do something does not create an obligation to do it.

KC. Before the lawsuit a friend of mine who has a CCW told me that prior to this lawsuit, the Sheriff permitted CCW holders to ignore the parks signs due to preemption of CA law regarding CCW's.

The only place you could not carry were in post offices, governors mansion and possibly a few other forbidden places. We can even carry in schools!!!

A CA CCW has some of the least amount of restrictions of all the carry permits in the nation. This lawsuit didn't help that distinction.

taperxz
11-19-2013, 2:35 PM
On what basis? There is nothing in the law obligating an issuing entity to put restrictions on the back of a CCW.

Having the power to do something does not create an obligation to do it.

You are misunderstanding my point i believe.

A CA CCW stands alone by itself per state law. UNLESS a Sheriff adds restrictions. Otherwise, its good to go accept in places like the governors mansion and post offices. (private property is another matter of law)

kcbrown
11-19-2013, 2:43 PM
You are misunderstanding my point i believe.

A CA CCW stands alone by itself per state law. UNLESS a Sheriff adds restrictions. Otherwise, its good to go accept in places like the governors mansion and post offices. (private property is another matter of law)

I don't see the point you're attempting to make at all.

All of what you say here may be true, but that does not create an obligation to add restrictions to the license. Nothing in the law does so.

As such, any restriction that is placed upon a carry license is done so strictly because the sheriff wishes to do so. Nothing more.

taperxz
11-19-2013, 2:46 PM
I don't see the point you're attempting to make at all.

All of what you say here may be true, but that does not create an obligation to add restrictions to the license. Nothing in the law does so.

As such, any restriction that is placed upon a carry license is done so strictly because the sheriff wishes to do so. Nothing more.

Thats correct! Now things have changed. Now a county can put a blanket restriction on a carry license without the Sheriffs knowledge or consent to do so. Prior to this lawsuit, there was no precedents to do so.

Clearly put, before this lawsuit only the IA placed restrictions on a CCW. Not just the IA any more.

taperxz
11-19-2013, 2:50 PM
KC? Do have a CCW? Do you understand how it works? Just asking for clarity.

kcbrown
11-19-2013, 3:20 PM
Thats correct! Now things have changed. Now a county can put a blanket restriction on a carry license without the Sheriffs knowledge or consent to do so. Prior to this lawsuit, there was no precedents to do so.


Sure there was. That precedent was set by San Mateo itself when they enacted the ordinance in question.

What is the operative difference between an unchallenged government restriction and a government restriction in which the challenge has failed? Think about that very carefully before you answer.



Clearly put, before this lawsuit only the IA placed restrictions on a CCW. Not just the IA any more.No, before this lawsuit, the question of whether or not localities could restrict CCW holders was unanswered. Now it is answered.

kcbrown
11-19-2013, 3:21 PM
KC? Do have a CCW? Do you understand how it works? Just asking for clarity.

I don't have a CCW, thanks to the fact that I live deep in hostile territory.

As for "how it works", I guess it depends on what specific bit you're talking about.

taperxz
11-19-2013, 3:36 PM
Sure there was. That precedent was set by San Mateo itself when they enacted the ordinance in question.

What is the operative difference between an unchallenged government restriction and a government restriction in which the challenge has failed? Think about that very carefully before you answer.


No, before this lawsuit, the question of whether or not localities could restrict CCW holders was unanswered. Now it is answered.

Which is now in direct conflict with CA law on CCW's where only the IA could restrict carry on the license.

Which i presume was the very reason for the lawsuit and one i initially supported.

kcbrown
11-19-2013, 3:41 PM
Which is now in direct conflict with CA law on CCW's where only the IA could restrict carry on the license.


Does the law explicitly say that localities cannot restrict carry by way of ordinances (or, at the very least, that only issuing authorities can restrict carry licensees in any way)?

Or was that merely "understood" by way of "gentleman's agreement"?

If the former, where's the wording in the law that supports that?

If the latter, then it should be clear that such "agreements" are worthless when you're dealing with governments, because governments are not operated by gentlemen.

kcbrown
11-19-2013, 4:19 PM
Which is now in direct conflict with CA law on CCW's where only the IA could restrict carry on the license.

Which i presume was the very reason for the lawsuit and one i initially supported.

That which is not explicitly disallowed by the law is allowed by the law, right? That is true for both individuals and governments.

That the law allows the issuing authority to place restrictions on carry licensees does not, itself, mean that only the issuing authority may restrict carry licensees -- unless the law explicitly says such, that is.

If there is a statement in the law that says that only the state and the entities it explicitly authorizes may enact restrictions on carry licensees, then the court has erred by upholding the ordinance, because for the court to do so means that the court has now legislated from the bench. If there is no such statement, which is what I'm expecting here, then it is only wishful thinking that would cause someone to believe that localities cannot enact restrictions on carry licensees and get away with it.


Hence, unless the law is explicit in regard to the above, while it may be that this particular case wasn't argued particularly well, it is mere wishful thinking to believe that the court would have reached a different conclusion even had the case been argued perfectly.

Librarian
11-19-2013, 4:29 PM
I believe the law in question is PC 26200 26200. (a) A license issued pursuant to this article may include
any reasonable restrictions or conditions that the issuing authority
deems warranted, including restrictions as to the time, place,
manner, and circumstances under which the licensee may carry a
pistol, revolver, or other firearm capable of being concealed upon
the person.
(b) Any restrictions imposed pursuant to subdivision (a) shall be
indicated on any license issued.
I fail to see how any but the Sheriff or his designee, or the Chief of Police or his designee, may add restrictions to an individual license.

That a government body may impose 'no guns allowed' on areas under its control seems to be reasonable, yet it is also the case that the state, in Government Code 53071, has said 53071. It is the intention of the Legislature to occupy the whole
field of regulation of the registration or licensing
of commercially manufactured firearms as encompassed by
the provisions of the Penal Code, and such provisions shall be
exclusive of all local regulations, relating to registration or
licensing of commercially manufactured firearms, by any
political subdivision as defined in Section 1721 of the Labor
Code. I believe it clear that a 'license to carry' is, in fact, a license in this context.

Are additional 'local' restrictions on a state-licensee excluded by this code? Apparently the court feels 'no'.

kcbrown
11-19-2013, 4:53 PM
I believe the law in question is PC 26200
I fail to see how any but the Sheriff or his designee, or the Chief of Police or his designee, may add restrictions to an individual license.


The wording of the law grants the issuing authority the power to add arbitrary restrictions to the license. But that does not automatically mean that individual government entities cannot further restrict the activities of licensees. That which is not explicitly disallowed is allowed.

What you say is true of the license, but not the licensee. But more importantly, remember that the license is merely the vehicle that allows one to be exempt from the concealed carry prohibition (and other laws which explicitly exempt licenseholders from their effects). It is, in essence, an affirmative defense to a specific set of laws. Since local ordinances are not the concealed carry prohibition or those other laws, for that matter, the license in question does not automatically exempt licenseholders from them.

ETA: As such, the restrictions that the licensing authority can place on a license are conditions in which the permit does not exempt one from the concealed carry prohibition or other laws which use the license as a vehicle for exemption. Since the license is a vehicle for exemption, it follows that it is only operative where such an exemption exists.



That a government body may impose 'no guns allowed' on areas under its control seems to be reasonable, yet it is also the case that the state, in Government Code 53071, has said I believe it clear that a 'license to carry' is, in fact, a license in this context.
Licensing of carry is not licensing of firearms. The latter is applicable to things like RAWs.

I guess one would have to examine the legislative history to see whether the intention of the legislature was to occupy the entire field of regulations involving not just licensing and registration with respect to possession and ownership of firearms, but also with respect to all activities involving the use thereof.

But if the legislature intended the latter, then it follows that localities may not require firearm-related businesses to acquire operating permits from those localities even though they may require such of other businesses. ETA: It also follows that concealed carry holders would be exempt from all local ordinances forbidding discharge of firearms (but they might still run afoul of PC 246.3).



Are additional 'local' restrictions on a state-licensee excluded by this code? Apparently the court feels 'no'.Precisely. And that is a plausible (quite possibly the most plausible) reading of the law.

Whenever you deviate from the strictest meaning of the law, you drastically increase the risk that your interpretation will be regarded as invalid.

kcbrown
01-24-2014, 4:18 PM
In our usual "odd couple" style :D, Tincon and I have been debating about this case. The fun starts here (http://www.calguns.net/calgunforum/showthread.php?p=13278931#post13278931).

I'm now responding to his last:



Which of those elements dominates the equation as regards making the case unlikely to win?


Scope.


Wait. My question was with respect to the case against the San Mateo ordinance, not against any other ordinance or any other target.

Is your contention here that the scope of the San Mateo case was the primary reason it failed, and thus, had the scope been reduced, it would have been substantially more likely to succeed?




A more narrow case against San Mateo's ordinance, or a more narrow case against some other target? If the former, how could such a case be constructed, and in what way was San Mateo overbroad?
Other, and read the opinion.
OK. I'll comment further once I've read the opinion. But if you're talking about some other target, then what other target, and why? And if it's a different target with a different ordinance and different scope, why should we believe that the resulting decision would bolster an action against San Mateo's ordinance?




Yeah, right. Because, you know, it's not as much damage to have parks called out as "sensitive places" and supported by the judiciary as such, thus eliminating them as being covered by the 2nd Amendment, compared to having state preemption's applicability to parks eliminated, right? And that's but one way a 2A claim could have failed.
Well that's the problem with CGF filing cases at all
Look, your comment was in the context of what CGF should have done differently in San Mateo, so merely claiming that CGF shouldn't be filing cases at all is irrelevant to your claim that they should have filed a 2A case against San Mateo instead of (or in addition to) a state preemption case.

You claimed that a 2A action would have caused less damage than a state preemption action. That claim seems unsupported at best. I'm asking you for justification of that opinion, and you're giving me squat.