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fizux
08-21-2013, 1:13 AM
If you are here to ask about the current status of Peruta you should read the sticky (http://www.calguns.net/calgunforum/showthread.php?t=893452) first.

Peruta v. County of San Diego [Sheriff William Gore]
Issue: 2A Right to Bear Arms Outside the Home

Current Status:
As of 6/16/2015 - En Banc rehearing held, decision pending.

3/26/2015 - En Banc rehearing ordered. (see file: 10-56971ebo.pdf)
3/7/2014 - Motions to Intervene & Amici pending, requesting rehearing En Banc; Parties to file response NLT 3/26/2014. Mandate stayed pending decision on motions.
3/6/2014 - Appearance of LCAV and Marin County Sheriff.
3/5/2014 - LCAV and Marin County Sheriff's Motion for Leave to File Amicus Brief and Proposed Amicus Brief (attached).
3/5/2014 - Craig Konnoth's 46-5 motion is granted.
3/5/2014 - Order directing each party to respond to CA & Brady's Motions to Intervene and CPCA/CPOA's Petition for Rehearing En Banc (attached).
3/3/2014 - Craig Konnoth's motion for 46-5 exemption (attached). [CA's attorney used to work for 9CA, and is applying for an exception to allow him to represent CA.]
2/28/2014 - Appearance of State of California (as proposed intervenor).
2/13/2014 - 9CA Panel Opinion (http://www.gpo.gov/fdsys/pkg/USCOURTS-ca9-10-56971/pdf/USCOURTS-ca9-10-56971-0.pdf) Declares May-Issue Unconstitutional.
Congratulations to NRA/CRPA, Michel & Associates, Paul Clement, and everybody who contributed to this case.

12/6/2013 - 28(j) letter [attached, pending RECAP update] (re: U.S. v. Chovan (http://cdn.ca9.uscourts.gov/datastore/opinions/2013/11/18/11-50107.pdf)).
9/13/2013 - 28(j) letter (http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v.-County-of-San-Diego_Conformed-Appellants-Citation-of-Supplemental-Authority-Rule-28j-Letter.pdf) (re: People v. Aguilar (http://www.calguns.net/calgunforum/showthread.php?t=822034)).
12/6/2012 - Oral Argument (Audio (http://www.ca9.uscourts.gov/media/view.php?pk_id=0000010109)).
Various 28j / Supp. Auth. filed.


Trial Court: S.D. Cal.
Case No. 3:09-cv-02371
Docket: http://ia700406.us.archive.org/23/items/gov.uscourts.casd.308678/gov.uscourts.casd.308678.docket.html (http://ia700406.us.archive.org/23/items/gov.uscourts.casd.308678/gov.uscourts.casd.308678.docket.html)


Appellate Court: 9CA
Case No.: 10-56971
Docket: http://ia601703.us.archive.org/11/items/gov.uscourts.ca9.10-56971/gov.uscourts.ca9.10-56971.docket.html (http://ia601703.us.archive.org/11/items/gov.uscourts.ca9.10-56971/gov.uscourts.ca9.10-56971.docket.html)


Links:
CGF Wiki for this case: http://wiki.calgunsfoundation.org/Peruta_v._County_of_San_Diego
CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Litigation_Past_and_Present
Michel & Assoc. Case Tracker: http://michellawyers.com/guncasetracker/perutavsandiego/
9th Circuit Media Page regarding this case: http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722
News (2/13/2014): CGF credits NRA for its outstanding work and important victory for the Second Amendment: https://www.calgunsfoundation.org/2014/02/ninth-circuit-holds-californias-carry-license-laws-unconstitutional/

woods
08-21-2013, 1:43 AM
These cases feel like they will never end.thanks for the update.

Sent from my HTCEVOV4G using Tapatalk 4

rugershooter
08-21-2013, 8:55 PM
Any expectations as to how long the 9th circuit will take for a ruling?
I've been out of the loop for a while; 22 hr work days don't leave much time for keeping track with these things...

sholling
08-21-2013, 11:34 PM
The attorney for the County is getting his arse handed to him. Why the delay? The proper result is obvious. They just don't want to issue the ruling.
The problem is that in most of the cases so far the government attornies could have just recited the text of Jabberwocky as their entire argument and the courts would still have handed them a victory. Most of the judges haven't given one wit about what Gura argues or what the constitution says or what the US Supreme Court said in Heller - most of the judges hearing 2nd Amendment cases have made a political decision that they don't want the general public to have guns and they sure as heck don't want us carrying guns.

fizux
02-13-2014, 7:41 PM
bump for updates, including release of 9CA panel opinion.

Jimi Jah
02-14-2014, 10:40 AM
Gore is fighting this decision. The SDSD has asked the 9th to issue a complete ruling. That may not go as desired. If it does, expect no changes as Gore will then request a SCOTUS decision. He is dead set against CCW's in SD county, period. Then it is delayed until the SCOTUS either take or pass on the case. If they pass and it is overruled by the complete 9th, case over, we lose.

Remember, the 9th is the most liberal appeals court in the USA with 25% of their decisions overruled, a court packed with Clinton and Obama appointees. Odds are no better than 50/50 for them to uphold the decision.

If the 9th upholds the case and the Supremes decide to rule, everything is on hold until that decision. That could take two years or so as they will not include it this year.

Expect about June 2015 for the decision, if it is coming at all.

Librarian
02-14-2014, 12:11 PM
Just for fun, if one thinks a thread need moderating, report it to the moderators - there's the 'report post' button in every post header.

A few posts deleted. This thread was started as a case-progress thread; we have lots of discussion in the other open threads.

lear60man
02-14-2014, 12:34 PM
Gore is fighting this decision. The SDSD has asked the 9th to issue a complete ruling. That may not go as desired. If it does, expect no changes as Gore will then request a SCOTUS decision. He is dead set against CCW's in SD county, period. Then it is delayed until the SCOTUS either take or pass on the case. If they pass and it is overruled by the complete 9th, case over, we lose.

Remember, the 9th is the most liberal appeals court in the USA with 25% of their decisions overruled, a court packed with Clinton and Obama appointees. Odds are no better than 50/50 for them to uphold the decision.

If the 9th upholds the case and the Supremes decide to rule, everything is on hold until that decision. That could take two years or so as they will not include it this year.Expect about June 2015 for the decision, if it is coming at all."


Thank you for the most cohesive explanation of what to expect. My question is what will happen if SD requests an En-Banc? Can the 9th sit on that request for years while we wait? We need a Calguns flow chart on where this decision could be going and an approximate time line. Make it a sticky.(Paging Librarian). The average Calgunner is having a difficult time sifting through the congratulatory posts to find 'what happens next.'

Unfortunately I see this victory as just one more wrung on the ladder to CCW in CA. And even if we win, how do we mandate compliance? I can see a reaction by SD where if you want a CCW you have to sue the county personally. 'Congratulations Mr. Pertula. Here is your CCW. it took you X years and Y dollars. Who else would like to sue us to get one?'

Could California rescind the unloaded open carry law to circumvent giving out CCW's? Or has that ship sailed?

But yea....a nice flow chart would be a great sticky for us folks who dont have a legal eye.

fizux
02-14-2014, 2:04 PM
"


Thank you for the most cohesive explanation of what to expect. My question is what will happen if SD requests an En-Banc? Can the 9th sit on that request for years while we wait? We need a Calguns flow chart on where this decision could be going and an approximate time line. Make it a sticky.(Paging Librarian). The average Calgunner is having a difficult time sifting through the congratulatory posts to find 'what happens next.'

Unfortunately I see this victory as just one more wrung on the ladder to CCW in CA. And even if we win, how do we mandate compliance? I can see a reaction by SD where if you want a CCW you have to sue the county personally. 'Congratulations Mr. Pertula. Here is your CCW. it took you X years and Y dollars. Who else would like to sue us to get one?'

Could California rescind the unloaded open carry law to circumvent giving out CCW's? Or has that ship sailed?

But yea....a nice flow chart would be a great sticky for us folks who dont have a legal eye.
A lot of people expect this to turn out just like Nordyke. There are plenty of resources on that case's history.

Time estimate: 2 weeks! 14 years.

Librarian
02-14-2014, 2:58 PM
'What happens next' - guesses, of course - are in the sticky http://www.calguns.net/calgunforum/showthread.php?p=13432008#post13432008

Could be 6 months or so before we know if it might go en banc.

Courts do not move in internet time.

It took until 1933 to move presidential inauguration from March to January, possible, I believe, because train service would get the new President there in winter. Courts are still kind of in the 50s ...

thayne
02-14-2014, 3:17 PM
Gore is fighting this decision. The SDSD has asked the 9th to issue a complete ruling. That may not go as desired. If it does, expect no changes as Gore will then request a SCOTUS decision. He is dead set against CCW's in SD county, period. Then it is delayed until the SCOTUS either take or pass on the case. If they pass and it is overruled by the complete 9th, case over, we lose.

Remember, the 9th is the most liberal appeals court in the USA with 25% of their decisions overruled, a court packed with Clinton and Obama appointees. Odds are no better than 50/50 for them to uphold the decision.

If the 9th upholds the case and the Supremes decide to rule, everything is on hold until that decision. That could take two years or so as they will not include it this year.

Expect about June 2015 for the decision, if it is coming at all.

It wont take two years. SCOTUS wont take this case, they will take drake this year.

fizux
03-07-2014, 10:18 AM
OP updated.

soul
04-17-2014, 7:42 PM
http://www.law.com/sites/jamesching/2014/04/12/tactical-considerations-in-the-pending-motion-en-banc-to-review-ninth-circuits-peruta-decision-on-the-second-amendments-effect-on-concealed-carry-permit-issuance-in/


Best part of conclusion -

"
California itself faces the negation of its system of gun control without any practical Legislative fix, as the opinion requires both the removal of the abolition of open carry and the elimination of good cause requirements for concealed carry.

"

Grakken
04-17-2014, 7:49 PM
Can you post what it says without having to signup for whatever it is they want you to sign up for?

:)

Drivedabizness
04-17-2014, 8:47 PM
http://www.law.com/sites/jamesching/2014/04/12/tactical-considerations-in-the-pending-motion-en-banc-to-review-ninth-circuits-peruta-decision-on-the-second-amendments-effect-on-concealed-carry-permit-issuance-in/


Best part of conclusion -

"
California itself faces the negation of its system of gun control without any practical Legislative fix, as the opinion requires both the removal of the abolition of open carry and the elimination of good cause requirements for concealed carry.

"

Ummm - No. The ruling DID NOT say this.

Dirtbozz
04-17-2014, 8:48 PM
Can you post what it says without having to signup for whatever it is they want you to sign up for?

:)

It seems you can read the article by scrolling and reading two or three lines at the top of the screen. A least it works for me.

Dirtbozz
04-17-2014, 9:00 PM
Can you post what it says without having to signup for whatever it is they want you to sign up for?

:)

It seems you can read the article by scrolling and reading two or three lines at the top of the screen. A least it works for me.

soul
04-18-2014, 7:37 AM
I have the PDF, the site is not allowing me to post beyond certain length.
Any other option?

fizux
04-18-2014, 12:20 PM
I hit Ctrl+A (select all), then Ctrl+C (copy), opened notepad and pasted the text in notepad. The article will be a nice block of text in the middle, and you can ignore all of the other garbage.

fizux
04-18-2014, 12:36 PM
Here is another "what if" musing about the Panel's strategery....

Could the Panel be waiting to see if Drake is granted cert before deciding on the motion to intervene? What if SCOTUS were to grant the Drake petition today, and announce it on Monday --- couldn't the Panel then stay Peruta sua sponte, and decide the motion to intervene after SCOTUS' opinion in Drake? Wouldn't that have the effect of preserving Peruta as good law in CA and HI for the next 6-9 months until SCOTUS lays down the law anyway?

In that period of time, some sheriffs may come to grips with the state of law and become more reasonable regarding their issuance policies. Since Peruta would still be good law, many sheriffs would realize the liability created by holding CCW apps for that long, so that scenario would provide some 2A benefit even before SCOTUS issues its decision.

Obviously, it won't help us (at least initially) in hard-core Jim Crow counties like SF and Marin, but the pressure will increase as more Californians traveling through their counties fall under vSI.

At a very minimum, it will reduce the "we didn't know it was coming" excuse when they don't have the staff or approved training curricula to handle the tens of thousands of apps per county that have accumulated since February in the "decide after Peruta" pile.

Untamed1972
04-18-2014, 12:53 PM
Here is another "what if" musing about the Panel's strategery....

Could the Panel be waiting to see if Drake is granted cert before deciding on the motion to intervene? What if SCOTUS were to grant the Drake petition today, and announce it on Monday --- couldn't the Panel then stay Peruta sua sponte, and decide the motion to intervene after SCOTUS' opinion in Drake? Wouldn't that have the effect of preserving Peruta as good law in CA and HI for the next 6-9 months until SCOTUS lays down the law anyway?

In that period of time, some sheriffs may come to grips with the state of law and become more reasonable regarding their issuance policies. Since Peruta would still be good law, many sheriffs would realize the liability created by holding CCW apps for that long, so that scenario would provide some 2A benefit even before SCOTUS issues its decision.

Obviously, it won't help us (at least initially) in hard-core Jim Crow counties like SF and Marin, but the pressure will increase as more Californians traveling through their counties fall under vSI.

At a very minimum, it will reduce the "we didn't know it was coming" excuse when they don't have the staff or approved training curricula to handle the tens of thousands of apps per county that have accumulated since February in the "decide after Peruta" pile.

With Peruta currently being stayed......I don't think you can call it "good law" quite yet. Yes, some Sheriffs like OC are abiding by the decision anyway. But is not....he's just sitting on it for now. So until an order to comply is issued you can't call it "good law". An opinion was issued, but it's not being enforced yet.

caliberetta
04-18-2014, 12:55 PM
Don't know if this has been posted, but the 9th Circuit Court has created a special page dedicated to the case:

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722

fizux
04-18-2014, 1:05 PM
With Peruta currently being stayed......I don't think you can call it "good law" quite yet.
I'm just going with the legal definition. It hasn't been withdrawn (by grant of en banc) or overruled (by SCOTUS or 9CA en banc), so it remains controlling precedent. As of today, you would have a valid claim under 42 USC § 1983 (assuming all other criteria were satisfied) for willful deprivation of your civil rights; however, if the case is stayed pending SCOTUS' decision in Drake *after* the grant of an en banc petition, then you would not be able to rely upon Peruta as "good law." (note that is exactly what happened in Nordyke when McDonald was granted certiorari.)

Yes, some Sheriffs like OC are abiding by the decision anyway.
Exactly my point. The longer this drags out while Peruta is still good law, the more sheriffs will cave (if not exactly shall-issue, at least some places will go from no-issue to when-monkeys-fly-out-of-my-butt, and from monkeys to may-issue).

But is not....he's just sitting on it for now. So until an order to comply is issued you can't call it "good law". An opinion was issued, but it's not being enforced yet.
A lot of changes are being made in San Diego. Maybe Sheriff Gore is not obligated to issue a permit to Mr. Peruta today, but a SD resident could still sue him tomorrow and cite to Peruta as binding legal precedent.

fizux
04-18-2014, 1:06 PM
Don't know if this has been posted, but the 9th Circuit Court has created a special page dedicated to the case:

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722
Yup, its in the OP.

dantodd
04-18-2014, 1:07 PM
Here is another "what if" musing about the Panel's strategery....

Could the Panel be waiting to see if Drake is granted cert before deciding on the motion to intervene? What if SCOTUS were to grant the Drake petition today, and announce it on Monday --- couldn't the Panel then stay Peruta sua sponte, and decide the motion to intervene after SCOTUS' opinion in Drake? Wouldn't that have the effect of preserving Peruta as good law in CA and HI for the next 6-9 months until SCOTUS lays down the law anyway?



Intervention status is a different type of question from the underlying merits of the case.

Certainly the panel could stop all motion on the case or even stay it pending Drake. This would presumably include the intervention motion.

I doubt that anything significant would change though. While Peruta is currently law I can't see any district issuing an order directing a sheriff to accept "self defense" for good cause while Drake is under review.

It would be much more interesting if the court granted her petition but denied en banc. If the full court didn't vote to take on the case Harris would have to appeal to SCOTUS. This would be interesting and telling. If they denied her request for a preliminary injunction (which would surely be her request) it would be a pretty strong signal of the ultimate outcome of Drake.

Of course, the court could GVR Drake on Monday. :D making all of this moot.

fizux
04-18-2014, 1:32 PM
Intervention status is a different type of question from the underlying merits of the case.

Certainly the panel could stop all motion on the case or even stay it pending Drake. This would presumably include the intervention motion.

I doubt that anything significant would change though. While Peruta is currently law I can't see any district issuing an order directing a sheriff to accept "self defense" for good cause while Drake is under review.

It would be much more interesting if the court granted her petition but denied en banc. If the full court didn't vote to take on the case Harris would have to appeal to SCOTUS. This would be interesting and telling. If they denied her request for a preliminary injunction (which would surely be her request) it would be a pretty strong signal of the ultimate outcome of Drake.

Of course, the court could GVR Drake on Monday. :D making all of this moot.
Well, in the event of a GVR in Drake, I would hope for some instruction like, "... reconsider in light of the 9CA's reasoning in Peruta v. San Diego, which this Court adopts."

The decision on the motion to intervene is just the procedural excuse for the Panel to stay the matter without risking an en banc vote.

Perhaps some District Courts will ignore the Peruta opinion while Drake is pending SCOTUS, but I bet that with each homicide in California, a no-issue county counsel will wonder with whether that homicide victim had an application in the "hold" pile for months while their county prayed for Peruta's reversal. It isn't a magic bullet, but it is persuasive.

For those counties, I definitely expect to see an exception to this (http://www.sfgate.com/bayarea/article/Judge-tosses-sanctuary-suit-in-S-F-killings-3198588.php) result.

zokoz
04-18-2014, 6:51 PM
I ran across this earlier today. Here is a letter filed with courts yesterday.

http://blog.californiarighttocarry.org/wp-content/uploads/2014/04/150-Allan-Mayer-Amicus-Letter.pdf

Librarian
04-18-2014, 7:15 PM
I ran across this earlier today. Here is a letter filed with courts yesterday.

http://blog.californiarighttocarry.org/wp-content/uploads/2014/04/150-Allan-Mayer-Amicus-Letter.pdf

Interesting. I was not previously aware that the 9th entertains random pen-pals. (I agree that 'judicial economy' might best be served by not taking the case en banc. Whether that consideration should be paramount I cannot say.)

ryan_j
04-18-2014, 7:24 PM
Interesting. I was not previously aware that the 9th entertains random pen-pals. (I agree that 'judicial economy' might best be served by not taking the case en banc. Whether that consideration should be paramount I cannot say.)

I believe Mr. Mayer had filed an amicus brief concerning the same issue - that it is a waste of time to go en banc with this, and that it should be taken up by the Supreme Court.

Here's the full version of the letter, up on M&A's page:

http://michellawyers.com/wp-content/uploads/2010/11/Peruta_Friend-of-the-Court-ltr.-from-Allan-J.-Mayer-Re-Empirical-Statistical-Analysis.pdf

This guy is... umm... interesting.

zokoz
04-18-2014, 7:24 PM
Interesting. I was not previously aware that the 9th entertains random pen-pals. (I agree that 'judicial economy' might best be served by not taking the case en banc. Whether that consideration should be paramount I cannot say.)

I agree, and a little late in the game I might add.

ryan_j
04-18-2014, 7:24 PM
I agree, and a little late in the game I might add.

He filed this way back in March

zokoz
04-18-2014, 8:35 PM
He filed this way back in March

Well, I guess I should know what month it is.....:facepalm:

Thanks for pointing that out...

speedrrracer
04-18-2014, 8:38 PM
I ran across this earlier today. Here is a letter filed with courts yesterday.

http://blog.californiarighttocarry.org/wp-content/uploads/2014/04/150-Allan-Mayer-Amicus-Letter.pdf

Very interesting stuff. I completely disagree with his suggestion that the court look into some statistics. That's rational basis, and the core of the 2A is above that.

I do agree with him that the 9th should deny en banc to Peruta, Baker, Prieto. Would like to know how he's so certain that SCOTUS will grant cert to Drake, or if he's just a zealot.

And this is a Brady Bunch lawyer? Very strange stuff, because not granting en banc means we all get our LTCs...

zokoz
04-18-2014, 8:46 PM
I'm not sure how to take this guy. This letter to the court seems strange to me. I do like the part NO EN BANC.

Jsalud
04-18-2014, 9:04 PM
Very interesting stuff. I completely disagree with his suggestion that the court look into some statistics. That's rational basis, and the core of the 2A is above that.

I do agree with him that the 9th should deny en banc to Peruta, Baker, Prieto. Would like to know how he's so certain that SCOTUS will grant cert to Drake, or if he's just a zealot.

And this is a Brady Bunch lawyer? Very strange stuff, because not granting en banc means we all get our LTCs...

No en banc prevents its from going to SCOTUS. If we win in the Supreme Court of the United States it will be the law of the land across the board. As it stands the 9th Circuit decision only applies to states under the 9th circuit.

If I understand that wrong please feel free to let me know.

zokoz
04-18-2014, 9:23 PM
I found this interesting reading. It is a letter to Sheriffs and Chiefs on what is going on with Peruta.

https://www.google.com/url?q=http://www.jones-mayer.com/%3Ft%3D40%26an%3D29166%26format%3Dxml%26p%3D4083&sa=U&ei=APhRU_KkBcquyASf4YLABw&ved=0CCcQFjAC&usg=AFQjCNGdMZFwpE8yiwj7_Tn8DfNbae06cA

Drivedabizness
04-18-2014, 10:30 PM
He filed this way back in March

I'm sure his Mom is very proud of his grammar, spelling and syntax. And I'm sure he was the honor grad of whatever diploma mill he graduated from. Maybe he and Bill Lockyer were classmates?

wildhawker
04-18-2014, 11:08 PM
I found this interesting reading. It is a letter to Sheriffs and Chiefs on what is going on with Peruta.

https://www.google.com/url?q=http://www.jones-mayer.com/%3Ft%3D40%26an%3D29166%26format%3Dxml%26p%3D4083&sa=U&ei=APhRU_KkBcquyASf4YLABw&ved=0CCcQFjAC&usg=AFQjCNGdMZFwpE8yiwj7_Tn8DfNbae06cA

"Adams, et al. v. Ed Prieto and Yolo County..."

Lol. At least get the case name right.

-Brandon

JohnBrian
04-19-2014, 1:09 AM
He filed this way back in March

I'm sure his Mom is very proud of his grammar, spelling and syntax. And I'm sure he was the honor grad of whatever diploma mill he graduated from. Maybe he and Bill Lockyer were classmates?

:biggrinjester:

ryan_j
04-19-2014, 5:38 AM
No en banc prevents its from going to SCOTUS. If we win in the Supreme Court of the United States it will be the law of the land across the board. As it stands the 9th Circuit decision only applies to states under the 9th circuit.



If I understand that wrong please feel free to let me know.



Incorrect. It can be petitioned to SCOTUS. Would they want to? Probably not. Given that they got Heller and McDonald out of SCOTUS their goal is to keep it out of there for as long as possible.

Paladin
04-19-2014, 8:37 AM
I'm just going with the legal definition. It hasn't been withdrawn (by grant of en banc) or overruled (by SCOTUS or 9CA en banc), so it remains controlling precedent. As of today, you would have a valid claim under 42 USC § 1983 (assuming all other criteria were satisfied) for willful deprivation of your civil rights; however, if the case is stayed pending SCOTUS' decision in Drake *after* the grant of an en banc petition, then you would not be able to rely upon Peruta as "good law." (note that is exactly what happened in Nordyke when McDonald was granted certiorari.)
Correct.

The mandate in Peruta was stayed on Feb 28th, but the Peruta opinion was subsequently used by the Ninth Circuit to decide the Richards (March 5th) and Baker (March 14th) cases.

Peruta is "good law" in the entire 9th Circuit right now.

"Gentlemen, start your lawsuits!" ;)

Southwest Chuck
04-19-2014, 9:38 AM
Incorrect. It can be petitioned to SCOTUS. Would they want to? Probably not. Given that they got Heller and McDonald out of SCOTUS their goal is to keep it out of there for as long as possible.

I'm not so sure. Kamila Harris might be compelled to seek cert if en banc is denied. If Peruta stands, she's done. It's all on her shoulders, politically, since she failed to intervene in the beginning. She does have aspirations for higher office, you know. I think the dynamics are slightly different than with Moore v. Madigan. Lisa Madigan had a powerful daddy in the Illionois Legislature to guide her through the mine-field there.

aBrowningfan
04-19-2014, 11:27 AM
I'm not so sure. Kamila Harris might be compelled to seek cert if en banc is denied. If Peruta stands, she's done. It's all on her shoulders, politically, since she failed to intervene in the beginning. She does have aspirations for higher office, you know. I think the dynamics are slightly different than with Moore v. Madigan. Lisa Madigan had a powerful daddy in the Illionois Legislature to guide her through the mine-field there.
How so? She has a perfect opportunity to blame 'activist judges' Besides, she can lead the fight to GMC next with an instruction that all Sheriffs shall pursue a rigorous, in-depth determination of the GMC of each and every CCW applicant. All the way back to the womb.

Southwest Chuck
04-19-2014, 12:36 PM
How so? She has a perfect opportunity to blame 'activist judges' Besides, she can lead the fight to GMC next with an instruction that all Sheriffs shall pursue a rigorous, in-depth determination of the GMC of each and every CCW applicant. All the way back to the womb.

Just as I stated:
It's all on her shoulders, politically, since she failed to intervene in the beginning.
Not only that, she not only sat on her hands, she argued against CA & the AG being included in one of theses suits (Either Prieto or was it Richards?)

I believe M&A have the details on their website and included the specific details of her argument to exclude her from one of the suits (in one of M&A's responses/filings to the court) which came back to bit her in the azz.

There's no doubt though, that she'll try to do what you suggest anyway, mainly to cover her screw-up and give her political cover.

aBrowningfan
04-19-2014, 1:17 PM
Just as I stated:

…snip...

There's no doubt though, that she'll try to do what you suggest anyway, mainly to cover her screw-up and give her political cover.
And her constituents will by-and-large, give her the pass.

Gray Peterson
04-19-2014, 1:39 PM
Just as I stated:

Not only that, she not only sat on her hands, she argued against CA & the AG being included in one of theses suits (Either Prieto or was it Richards?)

I believe M&A have the details on their website and included the specific details of her argument to exclude her from one of the suits (in one of M&A's responses/filings to the court) which came back to bit her in the azz.

There's no doubt though, that she'll try to do what you suggest anyway, mainly to cover her screw-up and give her political cover.

Yes, and the Richards counsel in their filing against en banc review went into further detail to the entire 9th Circuit, plus the Peruta/Richards panel.

I'm not surprised, at all, that the decision to allow the CA AG to intervene seems to be dragging on after a Drake cert decision to grant/deny. If the game is to get Peruta standing as law of land in the 9th Circuit for as long as possible, then knowing how Drake is granted cert or not would inform Judge O'Scannlain's arguments to the active voter judges arguments that his decision should not be taken en banc in Richards/Baker.

What to say is fully dependent on if SCOTUS takes or doesn't take Drake. If they don't take it, O'Scannlain can say "Hey, since there's a clear split here and SCOTUS didn't take it the other case, so our superiors clearly want these series of cases, let Prieto and Kealoha take the Richards case to SCOTUS as a governmental defendant like what happened in Heller" (The case would be styled Prieto v. Richards).

If Drake is taken, O'Scannlain can say "Hey, SCOTUS has taken up Drake. Why do duplicative work and release a decision possibly against it three months before SCOTUS makes a ruling likely overruling us".

Either way you can expect O'Scannlain to argue the legal correctness of the ruling. The point is to make the vote call fall short of 14 votes for yes.

fizux
04-20-2014, 7:16 AM
Not only that, she not only sat on her hands, she argued against CA & the AG being included in one of theses suits (Either Prieto or was it Richards?)
I think she 12(b)(6)'ed her way out of Mehl, arguing the policy is the sheriff's problem, not CAAG. I'm glad Gorski was finally able to contribute something to the cause.

Paladin
04-20-2014, 9:27 AM
If the game is to get Peruta standing as law of land in the 9th Circuit for as long as possible, then knowing how Drake is granted cert or not would inform Judge O'Scannlain's arguments to the active voter judges arguments that his decision should not be taken en banc in Richards/Baker.

What to say is fully dependent on if SCOTUS takes or doesn't take Drake. If they don't take it, O'Scannlain can say "Hey, since there's a clear split here and SCOTUS didn't take it the other case, so our superiors clearly want these series of cases, let Prieto and Kealoha take the Richards case to SCOTUS as a governmental defendant like what happened in Heller" (The case would be styled Prieto v. Richards).

If Drake is taken, O'Scannlain can say "Hey, SCOTUS has taken up Drake. Why do duplicative work and release a decision possibly against it three months before SCOTUS makes a ruling likely overruling us".

Either way you can expect O'Scannlain to argue the legal correctness of the ruling. The point is to make the vote call fall short of 14 votes for yes.
:43:

Jimi Jah
04-20-2014, 10:35 AM
In the meantime, those impatient souls that filled CCW permits with the SDSD are all getting administrative 'rejection' letters sent out.

Some say no big deal, but I'm not so sure. I am waiting as I don't want any type or sort of rejection for any reason on my record, period.

I've waited 40 years, what's a few more?

dantodd
04-20-2014, 12:07 PM
In the meantime, those impatient souls that filled CCW permits with the SDSD are all getting administrative 'rejection' letters sent out.

Some say no big deal, but I'm not so sure. I am waiting as I don't want any type or sort of rejection for any reason on my record, period.

I've waited 40 years, what's a few more?

Why do you not want a rejection "on your record?" And what does that mean anyway? It isn't on your rap sheet or anything. It's the same as being administratively denied a permit to march on a specific date. If you won't apply until the good cause requirement is gone then the denial has even less effect since it cannot be even considered once we have shall issue. Even if we don't end up with shall issue and you later want to apply with elevated cause it won't effect whether the new good cause is adequate.

taperxz
04-20-2014, 3:09 PM
In the meantime, those impatient souls that filled CCW permits with the SDSD are all getting administrative 'rejection' letters sent out.

Some say no big deal, but I'm not so sure. I am waiting as I don't want any type or sort of rejection for any reason on my record, period.

I've waited 40 years, what's a few more?

Why do you not want a rejection "on your record?" And what does that mean anyway? It isn't on your rap sheet or anything. It's the same as being administratively denied a permit to march on a specific date. If you won't apply until the good cause requirement is gone then the denial has even less effect since it cannot be even considered once we have shall issue. Even if we don't end up with shall issue and you later want to apply with elevated cause it won't effect whether the new good cause is adequate.

Don't embellish the scenario jimi Jah! They're not getting rejection letters and to say so is a lie. They are being held in suspense pending a Peruta finality.

To say otherwise is a flat out lie.

A denial for a CCW is not a strike against you if you decide to apply with another agency if you were to move. Issuing Sheriffs know the drill if you came from a hostile county.

glock_this
04-20-2014, 3:36 PM
Don't embellish the scenario jimi Jah! They're not getting rejection letters and to say so is a lie. They are being held in suspense pending a Peruta finality.

To say otherwise is a flat out lie.

A denial for a CCW is not a strike against you if you decide to apply with another agency if you were to move. Issuing Sheriffs know the drill if you came from a hostile county.

I think you need to slow your roll a bit. People all over this forum mix words and don't pick the exact proper terms. You see it all day long. All though your point is right you're jumping down his throat like he is purposely lying & spreading FUD. Over responses like this are worse than the offense.

Finally:
1. I've seen no actual proof - just assumptions & claims as though it is fact - that a previous denail is no big deal & will not hurt you in any way. So, why is the question even asked and on the form? If a BG check will reveal it, why is that question specifically asked?

2. How do you have any idea or knowledge about what other sheriff's know or dont know or how they will act?

taperxz
04-20-2014, 5:02 PM
I think you need to slow your roll a bit. People all over this forum mix words and don't pick the exact proper terms. You see it all day long. All though your point is right you're jumping down his throat like he is purposely lying & spreading FUD. Over responses like this are worse than the offense.

Finally:
1. I've seen no actual proof - just assumptions & claims as though it is fact - that a previous denail is no big deal & will not hurt you in any way. So, why is the question even asked and on the form? If a BG check will reveal it, why is that question specifically asked?

2. How do you have any idea or knowledge about what other sheriff's know or dont know or how they will act?

That's because it was already mentioned to him in another thread that SD and other counties are issuing the same type of letter or are asked if they want their app to be held pending Peruta or not. He WAS told.

Not to mention that others mentioned that a denial is not a black mark in light of the situation and conditions in CA

CG of MP
04-20-2014, 8:09 PM
A denial for a CCW is not a strike against you if you decide to apply with another agency if you were to move.

I am not so sure denial is not a strike against you... If that were the case then why ask Question 2 on page 3: http://www.co.merced.ca.us/documents/Sheriff's%20Department/CCWAPP_1.PDF

I suspect that a denial DOES in fact cock some eyebrows when you apply in more than a couple of counties - cops look for patterns and like to dig.. They're funny that way :p

taperxz
04-20-2014, 8:20 PM
I am not so sure denial is not a strike against you... If that were the case then why ask Question 2 on page 3: http://www.co.merced.ca.us/documents/Sheriff's%20Department/CCWAPP_1.PDF

I suspect that a denial DOES in fact cock some eyebrows when you apply in more than a couple of counties - cops look for patterns and like to dig.. They're funny that way :p

Some Sheriffs know the climate and are happy to issue to a non prohibited person who was denied in a hostile county:p

CG of MP
04-20-2014, 8:33 PM
Some Sheriffs know the climate and are happy to issue to a non prohibited person who was denied in a hostile county:p

*GRIN* Very true that! But most of us do not live where either there is snow that is 10 feet deep until June or where the sheep and tumbleweeds outnumber humans 30 to 1 :-) :-)

taperxz
04-20-2014, 8:57 PM
*GRIN* Very true that! But most of us do not live where either there is snow that is 10 feet deep until June or where the sheep and tumbleweeds outnumber humans 30 to 1 :-) :-)

You leave my sheep out of it!:p

RobG
04-20-2014, 9:28 PM
While a denial may not be a "black mark" against you, if you are in Yolo county like I am and are denied, you cannot reapply for a year. So holding off until a positive decision is made seems to be a good idea.

kwyjeboe
04-20-2014, 9:39 PM
How much longer is this going to take?

Sent from my Nexus 5 using Tapatalk

CG of MP
04-20-2014, 9:50 PM
You leave my sheep out of it!:p

Okay pappy! ( http://www.youtube.com/watch?v=G-mziCsj8Fw ) ;-)

Funtimes
04-20-2014, 10:28 PM
While a denial may not be a "black mark" against you, if you are in Yolo county like I am and are denied, you cannot reapply for a year. So holding off until a positive decision is made seems to be a good idea.

Is there some statutory basis for this?

glock_this
04-20-2014, 10:35 PM
Here is another reason why a denial should/could be a concern...

You get denied for "self defense", you apply again later when/if things change or you have a different reason, they ask the question on the form, you answer, they bring it up in the interview and the next thing you know you are elaborating, maybe say a few things about the politics of it - as that's human nature - and soon after you get a denial under moral character because you shot your mouth off all because you got asked to explain your previous denial.

Anyway... so many people are irritated by certain sheriffs decisions, we see odd improprieties by government officials & people in power but yet somehow people just want to believe these same people just couldn't possibly find a way to twist a previous denial into another denial. Because yeah, in that situation they would/could never do such a thing huh?

dantodd
04-20-2014, 10:42 PM
You get denied for "self defense", you apply again later when/if things change or you have a different reason, they ask the question on the form, you answer, they bring it up in the interview and the next thing you know you are elaborating, maybe say a few things about the politics of it - as that's human nature - and soon after you get a denial under moral character because you shot your mouth off all because you got asked to explain your previous denial.


Oh, in that case, I agree; if you are unable to control yourself in a professional environment regarding self-defense etc. I would strongly recommend you not apply.

glock_this
04-20-2014, 10:50 PM
Oh, in that case, I agree; if you are unable to control yourself in a professional environment regarding self-defense etc. I would strongly recommend you not apply.

The point was a previous denial opens the door to a conversation that some will inevitably blow & thus jeopardize your chance. So it's a legit scenario where a previous denial could cause issues. No previous denial, no box checked on the form, no conversation.

Ones political view on the politics of CCW issuing should not preclude a person from a CCW. But the mere conversation can doom some people as their disdain will creep through & then the interviewer digs deeper.

Funtimes
04-20-2014, 11:12 PM
I think this is an issue of making an mountain out of a molehill.

SonofWWIIDI
04-20-2014, 11:12 PM
Okay pappy! ( http://www.youtube.com/watch?v=G-mziCsj8Fw ) ;-)

One of my favorite shows!
:D

dantodd
04-21-2014, 12:31 AM
The point was a previous denial opens the door to a conversation that some will inevitably blow & thus jeopardize your chance. So it's a legit scenario where a previous denial could cause issues. No previous denial, no box checked on the form, no conversation.

I understand and agree with you. If you are the kind of guy who can't keep his yap shut when it's important please do not apply. However; if you can keep your cool when someone asks the difficult question "why were you denied a license to carry?" then go ahead and apply. I am certain that "I thought self-defense was adequate good cause due to the courts at that time." would satisfy anyone without being political. But, if one is unable to limit their answer to something non-confrontational and apolitical then by all means please don't apply.

Nopal
04-21-2014, 7:56 AM
I understand and agree with you. If you are the kind of guy who can't keep his yap shut when it's important please do not apply. However; if you can keep your cool when someone asks the difficult question "why were you denied a license to carry?" then go ahead and apply. I am certain that "I thought self-defense was adequate good cause due to the courts at that time." would satisfy anyone without being political. But, if one is unable to limit their answer to something non-confrontational and apolitical then by all means please don't apply.

Your advice is practical given the sad state of affairs in this state, but why should we have to? It's hard to believe that our political inclinations (or lack thereof) are determinants into how or why we are granted/denied a permit to carry a concealed weapon. Since when did it become acceptable in this supposedly-free country of ours to be denied our right to self defense by saying something that a sheriff may find personally disagreeable?

The bottom line is that, as long as sheriffs have any amount of discretion regarding this matter, there will be abuses, which is why even with Drake and Peruta there is still a long way to go before we get shall issue.

As far as previous denials, how do you know that in fact, a previous denial won't affect you? Someone I know got approved by a certain agency but she felt she wasn't comfortable with the idea of carrying just yet (she is a recent convert from the other side) so she called the agency who approved her and asked to cancel the process, for now. The deputy that took her call told her that it was a wise decision not to get a permit if she didn't feel comfortable carrying, and that a note would be put in her case file stating that she was "in good standing" so that her cancellation wouldn't count against her if she chose to reapply. That, to me, is a pretty clear indication of previous denials likely counting against you.

Jimi Jah
04-21-2014, 8:46 AM
The bottom line is that, as long as sheriffs have any amount of discretion regarding this matter, there will be abuses, which is why even with Drake and Peruta there is still a long way to go before we get shall issue.


This is why I will wait. I don't trust the SDSD, period.

glock_this
04-21-2014, 9:24 AM
Glock-this

Slow your roll. Taperxz is correct.
Just calm down. There is no down side to being denied.
I had a sworn desk rat deputy gaurantee that I would be treated like felon by the DOJ and was asked to throw my application in the trash. I did not. Peruta did not.
I have have had 6 yrs of LTC since then and I have had the 9th circuit side in my favor. Don't snivel, don't whimper on the internet. Other people read this site. I'm quessing your a grow man. It is unseemly.

Hold fast and wait.

Did you read my entire post specific to Taperxz? I suspect not, as you would have seen that I agreed with his point, "All though your point is right".

But I felt Taperxz was wrong on jumping on the guy so hard "you're jumping down his throat like he is purposely lying & spreading FUD."

And the scenario I go on to give as just as valid a scenario happening so anyone elses who says it won't matter.

Now.. outside of those points I could pick up on that you were trying to say, your post is otherwise so poorly written, I am not exactly sure what the rest of your rant is even saying. But either way, classic Calguns hypocrisy of the guy complaining about the guy complaining and telling him to stop complaining while he complains.

IVC
04-21-2014, 9:30 AM
You leave my sheep out of it!:p

Don't worry. The rest of us are only interested in them as a food source... ;)

tamalpias
04-21-2014, 9:54 AM
I found this interesting reading. It is a letter to Sheriffs and Chiefs on what is going on with Peruta.

https://www.google.com/url?q=http://www.jones-mayer.com/%3Ft%3D40%26an%3D29166%26format%3Dxml%26p%3D4083&sa=U&ei=APhRU_KkBcquyASf4YLABw&ved=0CCcQFjAC&usg=AFQjCNGdMZFwpE8yiwj7_Tn8DfNbae06cA

the guy is obviously trolling for business. :rolleyes:

urquhart
04-21-2014, 10:14 AM
This is on Michel and Lawyers tracker. It gives an good explanation of the state of the decision.
http://michellawyers.com/2014/nra-victory-in-the-peruta-shall-issue-california-ccw-case/

Bhart356
04-21-2014, 10:57 AM
This is on Michel and Lawyers tracker. It gives an good explanation of the state of the decision.
http://michellawyers.com/2014/nra-victory-in-the-peruta-shall-issue-california-ccw-case/

I agree this is a nicely written article that provides Michel & Associates point of view on many of the issues discussed in this forum.

It appears as though M&A is conceding Kamala Harris's standing in the case, and fully expects Peruta to be heard en banc. They also fully expect the losing side to petition the Supreme Court. None of that is outside of the mainstream discussions in this forum. I'm sure others will find insight into M&A's thinking as they review the article.

M&A also sets expectations for a very extended timeline before the case is finalized. This becomes apparent as they explain the various stages of the en blanc process.

Of some interest (recent posts above), M&A provides assurance that denial of a permit cannot legally be used against anyone applying in the future.

Thanks urquhart!

ryan_j
04-21-2014, 11:28 AM
It appears as though M&A is conceding Kamala Harris's standing in the case, and fully expects Peruta to be heard en banc. They also fully expect the losing side to petition the Supreme Court. None of that is outside of the mainstream discussions in this forum. I'm sure others will find insight into M&A's thinking as they review the article.

From what I see, M&A is saying that petitions for rehearing en banc are certain, but actual rehearing en banc is an unknown, but it seems somewhat likely.

dantodd
04-21-2014, 11:52 AM
Don't worry. The rest of us are only interested in them as a food source... ;)

I would recommend treading carefully. The sheep dog it's very friendly, but only while Taper is with you

Tincon
04-21-2014, 1:41 PM
Petitions for en banc review have already been filed in Baker and Richards, so there is really no point in denying intervenor status in Peruta so an en banc petition can be considered in that case.

If the court grants intervenor status in Peruta, the petition to actually rehear the case on banc will be heavily opposed, the same as in Richards/Baker.

If the court wants to consider a carry case en banc, it is going to.

Allowing the AG to intervene assures that if a case is taken en banc, it will be Peruta – the case litigated by Michel/Clement that best argued the theories adopted by the ninth circuit that resulted in the published opinion. That is the case that should go en banc if any do, and the court having discretion to allow the AG in ensures this. The Richards and Baker cases may also join them in going en banc, but Peruta will absolutely be one of the cases that goes on banc, if not the sole case, and rightfully so.

It has nothing to do with incorrect claim that the validity of a state statute is being called into question, as Gene incorrectly speculated.

If a case goes en banc, it will be Peruta (and could be joined by Richards/Baker). Gene previously (falsely) asserted that the reason the Peruta opposition was styled the way it was, was because the argument that the validity of state statute was being called into question was, as he put it, “too cute.” And that Michel/Clement were “finally coming around to what [Gene] had been arguing all along.” That claim is WAY off the mark, and pretty silly.

Funtimes
04-21-2014, 1:45 PM
Petitions for en banc review have already been filed in Baker and Richards, so there is really no point in denying intervenor status in Peruta so an en banc petition can be considered in that case.

If the court grants intervenor status in Peruta, the petition to actually rehear the case on banc will be heavily opposed, the same as in Richards/Baker.

If the court wants to consider a carry case en banc, it is going to.

Allowing the AG to intervene assures that if a case is taken en banc, it will be Peruta – the case litigated by Michel/Clement that best argued the theories adopted by the ninth circuit that resulted in the published opinion. That is the case that should go en banc if any do, and the court having discretion to allow the AG in ensures this. The Richards and Baker cases may also join them in going en banc, but Peruta will absolutely be one of the cases that goes on banc, if not the sole case, and rightfully so.

It has nothing to do with incorrect claim that the validity of a state statute is being called into question, as Gene incorrectly speculated.

If a case goes en banc, it will be Peruta (and could be joined by Richards/Baker). Gene previously (falsely) asserted that the reason the Peruta opposition was styled the way it was, was because the argument that the validity of state statute was being called into question was, as he put it, “too cute.” And that Michel/Clement were “finally coming around to what [Gene] had been arguing all along.” That claim is WAY off the mark, and pretty silly.


I don't see why the city would even request en-banc in my case. It's reversed and remanded to the district court to proceed in light of another case; not sure what there is to rehear lol. The lower court hasn't even heard it yet to make a determination on anything.

Tincon
04-21-2014, 1:48 PM
I don't see why the city would even request en-banc in my case. It's reversed and remanded to the district court to proceed in light of another case; not sure what there is to rehear lol. The lower court hasn't even heard it yet to make a determination on anything.

That's why you have lawyers to see these things for you.

bassplayer
04-21-2014, 1:56 PM
While a denial may not be a "black mark" against you, if you are in Yolo county like I am and are denied, you cannot reapply for a year. So holding off until a positive decision is made seems to be a good idea.

Having been a recipient of one of those letters, it does NOT say "denied." The text says:

"Your application has been reviewed and does not meet the current requirements for "good cause" under California State law. The recent Ninth Circuit Court of Appeals opinion of Peruta v. County of San Diego has not yet become final. Therefore, rather than deny your application for CCW permit under existing law, the San Diego County Sheriff's Department will hold your application in abeyance until such time as the case is finished being adjudicated by the Ninth Circuit Court of Appeals.

For further updates, please visit the Sheriff's website at http://www.sdsheriff.net/licensing/ccw.html"

I am filing my copy away as I want a record of what they are doing with my application.

FWIW, I am the manager for admin support services in another part of the County and doing refunds is a royal pain where it hurts. Just doing the paperwork for the refund can take up to 1/2 hour per refund, so I can certainly empathize with their decision not to get the $$ up front. Luckily, the only part of the paperwork I have to do is sign off on it but I have to have staff to do the work!

Dan K.

Funtimes
04-21-2014, 3:39 PM
That's why you have lawyers to see these things for you.

And the lawyers agree with me. There isn't really anything to be reheard, except for Peruta. The City and County are grasping at straws.

CessnaDriver
04-21-2014, 3:42 PM
"current requirements for "good cause" under California State law"

Gore sure likes to play word games eh?

Tincon
04-21-2014, 4:52 PM
And the lawyers agree with me. There isn't really anything to be reheard, except for Peruta. The City and County are grasping at straws.

Which lawyers were those again? The same ones that said Strict Scrutiny isn't appropriate for 2A violations? :rolleyes:

I don't see why the city would even request en-banc in my case. It's reversed and remanded to the district court to proceed in light of another case; not sure what there is to rehear lol. The lower court hasn't even heard it yet to make a determination on anything.

This is the statement they agree with? It's hard to count how many ways in which it is wrong.

First, the lower court DID make a determination. It dismissed on MSJ. The determination was reversed by the 9th based on the holding by the Peruta panel. An attack on that reversal is an attack on Peruta. It's also critical to the government winning the case (attacking Peruta). Anyone, lawyer or not, who can't see that is blind or mentally handicapped. With Peruta as it stands much of Baker is a slam dunk, if your wonderful lawyers can figure out how to conform their case to Peruta, as Richards did (which they admittedly seem reticent to do, another fact which boggles my mind).

Chewy65
04-21-2014, 7:27 PM
Interesting. I was not previously aware that the 9th entertains random pen-pals. (I agree that 'judicial economy' might best be served by not taking the case en banc. Whether that consideration should be paramount I cannot say.)

Judicial economy would be better served if Briefs were limited to 10 pages and panels consisted of a single judge and two law clerks.

RobG
04-21-2014, 7:37 PM
Having been a recipient of one of those letters, it does NOT say "denied." The text says:

"Your application has been reviewed and does not meet the current requirements for "good cause" under California State law. The recent Ninth Circuit Court of Appeals opinion of Peruta v. County of San Diego has not yet become final. Therefore, rather than deny your application for CCW permit under existing law, the San Diego County Sheriff's Department will hold your application in abeyance until such time as the case is finished being adjudicated by the Ninth Circuit Court of Appeals.

For further updates, please visit the Sheriff's website at http://www.sdsheriff.net/licensing/ccw.html"

I am filing my copy away as I want a record of what they are doing with my application.

FWIW, I am the manager for admin support services in another part of the County and doing refunds is a royal pain where it hurts. Just doing the paperwork for the refund can take up to 1/2 hour per refund, so I can certainly empathize with their decision not to get the $$ up front. Luckily, the only part of the paperwork I have to do is sign off on it but I have to have staff to do the work!

Dan K.

I was only referring to Yolo county.

Funtimes
04-21-2014, 7:54 PM
Which lawyers were those again? The same ones that said Strict Scrutiny isn't appropriate for 2A violations? :rolleyes:



This is the statement they agree with? It's hard to count how many ways in which it is wrong.

First, the lower court DID make a determination. It dismissed on MSJ. The determination was reversed by the 9th based on the holding by the Peruta panel. An attack on that reversal is an attack on Peruta. It's also critical to the government winning the case (attacking Peruta). Anyone, lawyer or not, who can't see that is blind or mentally handicapped. With Peruta as it stands much of Baker is a slam dunk, if your wonderful lawyers can figure out how to conform their case to Peruta, as Richards did (which they admittedly seem reticent to do, another fact which boggles my mind).


We are on a preliminary injunction, not a MSJ. All we have been directed to do is go back and have the lower court reassess some of the prongs that were previously tested. At this point, we technically haven't "won" anything yet.

The government can attack Peruta all they want, but if it stands - attacking my case will not matter. We will go back, and proceed onto the merits. I think the city and the state would have been better served trying to file as Amici / intervenors in the Peruta case for en banc.

If you don't mind also, check the attitude and talk to me like a regular person.

kcbrown
04-21-2014, 8:15 PM
Which lawyers were those again? The same ones that said Strict Scrutiny isn't appropriate for 2A violations? :rolleyes:


Are you claiming that they're wrong?

Consider this: "public safety" is certainly going to be considered a "compelling government interest".

Now, suppose the regulation in question bans all bear of firearms in public by anyone who is not a current or former member of law enforcement, with the latter group being required to have had at least 5 years of active service followed by honorable discharge. The court will be faced with two questions:



Is the regulation "narrowly tailored"?
Is the regulation the "least restrictive means"?


Some courts will certainly answer "yes" to the first question. After all, the regulation doesn't cover the entirety of the population, and the legislature determined that only active law enforcement officers or sufficiently experienced (and, thus, proven trustworthy) ex-LEOs are sufficiently trustworthy to carry in public (a "factual" determination that is not a matter of law). Indeed, let's presume for the moment that the legislature actually has valid data supporting that position.

That leaves the second question, which raises the question of how to make the above law any less restrictive than it is without detrimentally impacting the "compelling government interest" (public safety). Suppose the legislature has data showing that ex-LEOs who had been in service for less than 5 years are more likely to use firearms in the commission of crimes than those who had been in 5 years or longer. Certainly, data such as that would compel the court to declare that the regulation is the "least restrictive means" of achieving the "compelling government interest" of public safety at the desired level.


And just like that, we would have a regulation that violates the right and which passes "strict scrutiny".


ETA: I have another example for you. "National security" in the form of preventing violent overthrow of the government is also a "compelling government interest". Suppose, then, that the federal government passed a law forbidding all ownership of firearms by the citizenry, excepting law enforcement, for the purpose of preventing the possibility of successful violent overthrow of the government (surely a "national security" issue if there ever was one). The regulation would be as "narrowly tailored" as possible as only sufficient restriction on such ownership could achieve the "compelling government interest" here. The regulation would also be the "least restrictive means" since there is no way to effectively guarantee that the citizenry is prevented from succeeding in such an overthrow attempt except by disarming the citizenry (were this not the case, most despotic rulers would not bother with the step of disarming the citizenry). So: "compelling government interest": check. "Narrowly tailored": check. "Least restrictive means": check. And just like that, a complete prohibition passes "strict scrutiny".




Scrutiny places government interest equal to, if not above and beyond, the right in question. That is an invariant that applies to scrutiny of all forms. It therefore logically follows that there will be regulations and/or laws which violate the right and which manage to pass "strict scrutiny".


While scrutiny may be a valid analytical tool for examining other rights, it is generally, if not wholly, inappropriate for application to the right to keep and bear arms, precisely because the instruments central to the right are dangerous of necessity, and therefore the right automatically implicates public safety. That fact is inescapable.

pterrell
04-21-2014, 8:19 PM
Where are we at in the finalization process. I noticed OP hasn't updated in almost a month.

madsend81
04-21-2014, 8:37 PM
We are still waiting to hear if the AG, or others, will be granted intervenor status.

Tincon
04-21-2014, 8:41 PM
While scrutiny may be a valid analytical tool for examining other rights, it is wholly inappropriate for application to the right to keep and bear arms, precisely because the instruments central to the right are dangerous of necessity, and therefore the right automatically implicates public safety. That fact is inescapable.

Well technically Beck conceded that intermediate scrutiny should apply, which is a lot worse than just saying strict scrutiny isn't the right test (I do agree with the latter, even if I don't think it is a particularly viable argument in court).

Tincon
04-21-2014, 8:49 PM
We are on a preliminary injunction, not a MSJ. All we have been directed to do is go back and have the lower court reassess some of the prongs that were previously tested. At this point, we technically haven't "won" anything yet.

Right, your motion for Motion for Preliminary Injunction was denied, and doing so the court held:

a) that the rights guaranteed by the Second Amendment extinguish at the threshold of the front door, may be limited to “exceptional cases” and/or may be left to the sole discretion of a government official;
b) that Hawaii does not prohibit the bearing of operational handguns within the confines of the home; and,
c) that due process protections are not offended where a state vests sole discretion in a government official to arbitrarily determine which citizens may exercise fundamental rights, without providing citizens any meaningful opportunity to be heard, without providing any reasons or justifications for the government official’s decision, and without affording aggrieved citizens any opportunity to seek review of that official’s decision.

That's from your appellate brief.

And if I'm being rude, it's because your case is a fly in the ointment, and it is terribly frustrating to read crap like this from lawyers that should not be involved in matters which are this important: http://www.calguns.net/calgunforum/showthread.php?t=857244

The government can attack Peruta all they want, but if it stands - attacking my case will not matter.

This is wrong. If there was no intervention/en banc in Peruta (allowing Peruta to stand), attacking Baker en banc could result in Peruta being overruled, which would very much matter. Those are the stakes we are playing at here, and why Baker is such a potential problem. Now we have to allow the AG to intervene and hope we can stop her from being granted rehearing en banc or win the en banc. So thanks.

dca965
04-21-2014, 8:52 PM
While a denial may not be a "black mark" against you, if you are in Yolo county like I am and are denied, you cannot reapply for a year. So holding off until a positive decision is made seems to be a good idea.

Rob- same here. When I posted this fact from Prieto's letter, Gene Hoffman said that in and of itself is illegal and asked that if we win and I reapply before the one year deadline per the letter, and am denied based on that alone, to let him/Calguns know.

kcbrown
04-21-2014, 8:52 PM
Well technically Beck conceded that intermediate scrutiny should apply, which is a lot worse than just saying strict scrutiny isn't the right test (I do agree with the latter, even if I don't think it is a particularly viable argument in court).

Oh. That context isn't one that was plain to me. Yeah, I agree, intermediate scrutiny is certainly not applicable, as the nature of the right here is such that intermediate scrutiny would nearly always disfavor the right.

The question is whether he conceded to intermediate scrutiny as a side effect (and, thus, almost certainly unintentionally), or if he explicitly conceded such. It sounds like the former. I don't have the full context in front of me. If you wouldn't mind, some links to that context would be helpful here...

IVC
04-21-2014, 8:55 PM
Consider this: "public safety" is certainly going to be considered a "compelling government interest".

Let's be more precise. The regulation must serve a compelling government interest, so it's not enough to say "public safety" is a "compelling government interest." Instead, bans targeting law abiding must be proven to serve the compelling government interest of public safety.

That's why we can have laws banning brandishing or carrying in one's hand, but we can't have laws banning safe carrying in public by ordinary law abiding people.

Tincon
04-21-2014, 8:56 PM
Oh. That context isn't one that was plain to me. Yeah, I agree, intermediate scrutiny is certainly not applicable, as the nature of the right here is such that intermediate scrutiny would nearly always disfavor the right.

The question is whether he conceded to intermediate scrutiny as a side effect (and, thus, almost certainly unintentionally), or if he explicitly conceded such. It sounds like the former. I don't have the full context in front of me. If you wouldn't mind, some links to that context would be helpful here...

I linked to it above. And not only is it certainly not applicable, an attorney for "our side" conceding it is downright treasonous. And it absolutely was explicit. :mad:

IVC
04-21-2014, 8:58 PM
...intermediate scrutiny is certainly not applicable, as the nature of the right here is such that intermediate scrutiny would nearly always disfavor the right.

To further that argument, all the recent circuit rulings against the right to carry were based on "intermediate scrutiny applied as rational basis" precisely because of the nature of the right in question, so if we are to get interest balancing based system, it must be strict scrutiny.

Tincon
04-21-2014, 9:01 PM
To further that argument, all the recent circuit rulings against the right to carry were based on "intermediate scrutiny applied as rational basis" precisely because of the nature of the right in question, so if we are to get interest balancing based system, it must be strict scrutiny.

I agree, and I don't think there is any other kind of scrutiny that can be applied to a fundamental right (if we are getting scrutiny). The only other treatment fundamental rights get is categorical, such as with the 5th and 6th Amendments. If those apply, they apply, period. I can see Heller implying as much, but no one important seems to agree with me.

taperxz
04-21-2014, 9:02 PM
I linked to it above. And not only is it certainly not applicable, an attorney for "our side" conceding it is downright treasonous. And it absolutely was explicit. :mad:

True but the better arguments in Peruta and Richards will moot intermediate scrutiny claimed in Baker. AND Peruta is in the drivers seat.

In the end, not much harm done. If Peruta and Richards are overturned, Beck was right but not in a preferential way.

dca965
04-21-2014, 9:03 PM
Having been a recipient of one of those letters, it does NOT say "denied." The text says:

"Your application has been reviewed and does not meet the current requirements for "good cause" under California State law. The recent Ninth Circuit Court of Appeals opinion of Peruta v. County of San Diego has not yet become final. Therefore, rather than deny your application for CCW permit under existing law, the San Diego County Sheriff's Department will hold your application in abeyance until such time as the case is finished being adjudicated by the Ninth Circuit Court of Appeals.

For further updates, please visit the Sheriff's website at http://www.sdsheriff.net/licensing/ccw.html"

I am filing my copy away as I want a record of what they are doing with my application.

FWIW, I am the manager for admin support services in another part of the County and doing refunds is a royal pain where it hurts. Just doing the paperwork for the refund can take up to 1/2 hour per refund, so I can certainly empathize with their decision not to get the $$ up front. Luckily, the only part of the paperwork I have to do is sign off on it but I have to have staff to do the work!

Dan K.

Just to be clear- you and others in SD Co. are at least having your apps held pending Peruta and it's resolution..... RobG , myself, and others in our county get a letter that starts: "Your request for issuance of a Concealed Weapons License from the Yolo County Sheriff's Department has been denied." And it ends with an invitation to reapply after one year of the date of the letter.

taperxz
04-21-2014, 9:06 PM
Just to be clear- you and others in SD Co. are at least having your apps held pending Peruta and it's resolution..... RobG , myself, and others in our county get a letter that starts: "Your request for issuance of a Concealed Weapons License from the Yolo County Sheriff's Department has been denied." And it ends with an invitation to reapply after one year of the date of the letter.

If Peruta and Richards prevail, they will have to let you re apply or face a civil lawsuit.

Tincon
04-21-2014, 9:08 PM
True but the better arguments in Peruta and Richards will moot intermediate scrutiny claimed in Baker. AND Peruta is in the drivers seat.

Yes it is, and it should be, but that doesn't excuse crap like Baker. I'll concede that sooner or later another case would have to come along which put Peruta in the same jeopardy it is in now, so we are probably better off, but I still don't like it.

kcbrown
04-21-2014, 9:09 PM
Let's be more precise. The regulation must serve a compelling government interest,


My argument is predicated on the assumption that the legislature has managed to show precisely that.

Let me put it simply: suppose the antis were actually shown to be correct, and public carry as a right was actually shown to decrease "public safety". Would that be sufficient justification to dispense with the right?

The "strict scrutiny" answer is yes. But my answer is no. What we're talking about here is a Constitutionally-protected right. The authors of the Bill of Rights, and all who ratified it, explicitly decided that the benefits of exercise of the right outweigh the increased risks that accompany the exercise of the right.


Scrutiny is not a valid means of evaluating the right to keep and bear arms precisely because of the above. Scrutiny alone can be used as a means of effectively extinguishing the right even if the law in question is as "narrowly tailored" as possible. All it takes is the right law and the right justification. And even if the right is not extinguished, scrutiny can and thus will be used to infringe upon the right, when infringement of the right has been taken off the table by the 2nd Amendment's ratification.

When "scrutiny" and the 2nd Amendment collide, the 2nd Amendment must win. This is so because it is the 2nd Amendment, and not "scrutiny", which is encoded into the Constitution, and the Constitution is the supreme law of the land.

taperxz
04-21-2014, 9:15 PM
Yes it is, and it should be, but that doesn't excuse crap like Baker. I'll concede that sooner or later another case would have to come along which put Peruta in the same jeopardy it is in now, so we are probably better off, but I still don't like it.

I know you don't like it. In time you will need to learn how to take a professional chill pill.

Youre dealing with the law that people will twist and turn and not always in your favor. A good lawyer brushes it off and rights the ship in their favor without letting anyone know they were concerned. Just another day at the office with nothing but confidence. ;)

kcbrown
04-21-2014, 9:18 PM
I linked to it above. And not only is it certainly not applicable, an attorney for "our side" conceding it is downright treasonous. And it absolutely was explicit. :mad:

I see that it was. :mad:

Methinks it comes from a fundamental misunderstanding on his part of what scrutiny in the context of the right to keep and bear arms implies -- the context being that which I supplied in my original response to you here in this thread.

My hope is that he has learned from this and does not make that mistake again.

Some concessions may appear to be benign but will later turn out not to be. It is, therefore, best to not concede anything at all. I imagine there are all sorts of political considerations involved in that, but expect the general principle applies nonetheless.

kcbrown
04-21-2014, 9:20 PM
Just another day at the office with nothing but confidence. ;)

If you and I were to meet, the resulting explosion would rip the fabric of the universe apart. :D

I think that meeting is something I would enjoy very much. I'm glad you're with us.

kcbrown
04-21-2014, 9:26 PM
I agree, and I don't think there is any other kind of scrutiny that can be applied to a fundamental right (if we are getting scrutiny).


See my original reply to you (and, especially, my edit to it). I don't believe that even strict scrutiny is valid to apply to this right, given its fundamental nature and the explicit justification in the Constitution for it.



The only other treatment fundamental rights get is categorical, such as with the 5th and 6th Amendments. If those apply, they apply, period. I can see Heller implying as much, but no one important seems to agree with me.Sadly, I'm not important, but I fully agree with you on that. Indeed, I'm of the opinion that such is the proper framework for analyzing any Constitutional claim. Categorical-historical analysis goes right to the heart of what the authors of the Constitution and its amendments meant when they penned it. Words have intended meaning, and that meaning is the only one that matters, for words are the means by which ideas are communicated, and that conveyance is the very purpose of words. The Constitution embodies many ideas. To dispense with the historical and categorical approach is to dispense with the very ideas that the authors of the Constitution were trying to convey. And that is a wrong of monumental proportions, for it severs the ties between the Constitution and the republic that was built upon it, thus rendering the Constitution inconsequential.

taperxz
04-21-2014, 9:27 PM
If you and I were to meet, the resulting explosion would rip the fabric of the universe apart. :D

I think that meeting is something I would enjoy very much. I'm glad you're with us.

I wouldn't put to much into my insight. I'm kind of a hack. LOL

kcbrown
04-21-2014, 9:32 PM
I wouldn't put to much into my insight. I'm kind of a hack. LOL

Even if that were true, I'm still glad you're here. A force that has an equal counterbalancing force yields a steady trajectory, something that we all here have a keen interest in. :D

taperxz
04-21-2014, 9:36 PM
Even if that were true, I'm still glad you're here. A force that has an equal counterbalancing force yields a steady trajectory, something that we all here have a keen interest in. :D

I thought you were at the CGF sponsored dinner, with Winkler in the city a couple years ago?

IVC
04-21-2014, 9:38 PM
A force that has an equal counterbalancing force yields a steady trajectory, something that we all here have a keen interest in. :D

I didn't realize there was a meaning behind your negativity. I've always thought you actually enjoyed being a pessimist.

IVC
04-21-2014, 9:43 PM
The only other treatment fundamental rights get is categorical, such as with the 5th and 6th Amendments. If those apply, they apply, period. I can see Heller implying as much, but no one important seems to agree with me.

Many agree, it's just that categorical analysis would pretty much strike down all the gun control laws and we would have a constitutional loaded open carry and no restrictions on barrel length or full auto.

Pragmatic approach is to chip away and get what we can while operating within the current reality. Sure we should aim for categorical analysis, but we cannot complain if we get interest balancing. It reminds me a lot of the issue of "voluntary taxes" - at some point one moves from being "right" to being a "tax protester."

kcbrown
04-21-2014, 9:46 PM
I thought you were at the CGF sponsored dinner, with Winkler in the city a couple years ago?

I was, but my memory isn't worth crap, and I can't remember anyone there except a few of the usual suspects (e.g., Don Kilmer, Gene, Brandon).

fizux
04-21-2014, 9:48 PM
Even if that were true, I'm still glad you're here. A force that has an equal counterbalancing force yields a steady trajectory, something that we all here have a keen interest in. :D
That's a very circular way of describing Newton's First Law of motion.
Given my username, how could I not notice?

Tincon
04-21-2014, 9:49 PM
Many agree, it's just that categorical analysis would pretty much strike down all the gun control laws and we would have a constitutional loaded open carry and no restrictions on barrel length or full auto.

Well no, Heller makes it clear that full auto is (at least potentially) outside the categorical protection of the Second Amendment (thanks to Gura throwing it under the bus). Only arms typically used by law abiding citizens for lawful purposes and which do not cause a reasonable panic in a normal person get 2A protection at all, per Heller. Also, "historical" regulations would stand. So not "all" gun laws would be struck down, we just don't have to argue about government purpose.

kcbrown
04-21-2014, 9:55 PM
I didn't realize there was a meaning behind your negativity. I've always thought you actually enjoyed being a pessimist.

No, I don't enjoy being a pessimist at all. I hold the views I do because the real world forces me to, not because I like them. It's a direct consequence of me being a realist to the greatest degree I can be. I suppose I could choose to be something other than a complete realist, but if I did that, I'd inevitably get something wrong as a result and bad things would ensue.

The whole point of being a realist is to make it possible to make accurate predictions, because accurate predictions are the only useful ones there are.


People might get the impression from the views I express here that I'm a depressed individual, but I'm really not. I use my views and the resulting predictions I can make to better my life to the degree I can, to make it more enjoyable.

Unfortunately, the degree to which I can make my life enjoyable has no effect on the fundamental essence of the real world, which is that it has evil (including all our deaths) baked into its very fabric at the most fundamental level. For what is chaos but evil by another name, and what is entropy but chaos? I do what I can to counteract that, but I will never avert my eyes from the truth before me no matter how unpalatable it may be. I try to have strength that way.

IVC
04-21-2014, 10:44 PM
I hold the views I do because the real world forces me to, ...

That's a dead giveaway - you're a pessimist. :)

(I'm a scientist so I subscribe to finer points of differences between scepticism and pessimism.)

IVC
04-21-2014, 10:48 PM
Well no, Heller makes it clear that full auto is (at least potentially) outside the categorical protection of the Second Amendment (thanks to Gura throwing it under the bus).

We don't know yet. And we don't know whether Heller 5 would have been Heller 4 if Gura hadn't conceded some ground (by no means am I condoning it, just looking at it in retrospect.)

Also, look at the development of gay rights. They certainly threw under the bus the whole concept of "marriage" in the beginning. Full auto can, similarly, be back in play down the road.

Tincon
04-21-2014, 10:57 PM
We don't know yet. And we don't know whether Heller 5 would have been Heller 4 if Gura hadn't conceded some ground (by no means am I condoning it, just looking at it in retrospect.)

Also, look at the development of gay rights. They certainly threw under the bus the whole concept of "marriage" in the beginning. Full auto can, similarly, be back in play down the road.

Nonetheless, a categorical standard would not automatically admit full auto protection.

kcbrown
04-21-2014, 11:10 PM
That's a dead giveaway - you're a pessimist. :)

(I'm a scientist so I subscribe to finer points of differences between scepticism and pessimism.)

LOL!! :D

Well, I will certainly agree that I'm a pessimist by the "traditional" sense of the word (someone whose beliefs and prognostications are more negative than positive), but that's an artifact of the nature of the real world.

I'd also agree I'm something of a pessimist even by the "relative" sense of the word (if we define the real world itself to be the neutral point), since I do tend to err on the pessimistic side when given a choice of what direction to err. But then, I err on the pessimistic side only because pleasant surprises are easier to deal with than unpleasant ones. Were the reverse true, I'd tend to err on the side of optimism. But I'd much rather not err at all.

So regardless, it's really all pragmatic.

taperxz
04-21-2014, 11:13 PM
LOL!! :D

Well, I will certainly agree that I'm a pessimist by the "traditional" sense of the word (someone whose beliefs and prognostications are more negative than positive), but that's an artifact of the nature of the real world.

I'd also agree I'm something of a pessimist even by the "relative" sense of the word (if we define the real world itself to be the neutral point), since I do tend to err on the pessimistic side when given a choice of what direction to err. But then, I err on the pessimistic side only because pleasant surprises are easier to deal with than unpleasant ones. Were the reverse true, I'd tend to err on the side of optimism. But I'd much rather not err at all.

So regardless, it's really all pragmatic.

That's being intellectually dishonest with ones self and for all intents and purposes, setting yourself up for a false positive.;)

Tincon
04-21-2014, 11:15 PM
That's being intellectually dishonest with ones self and for all intents and purposes, setting yourself up for a false positive.;)

You guys need to get a room. :D

IVC
04-21-2014, 11:19 PM
Nonetheless, a categorical standard would not automatically admit full auto protection.

Not automatically, but it is not going to be completely out of question and I'm not sure what Gura did will have much effect on the ruling that determines the fate of full auto.

Here is where the interpretation of "long standing" will be critical. Chicago tried it unsuccessfully with their handgun prohibition of 30 years. NFA is 80 years old, which is the same order of magnitude.

As a side issue, my interest in full auto is primarily due to the highly effective ban process: (1) ban *future* sales; (2) register existing; (3) control transfer; (4) grandfather in existing; (5) watch availability slowly go to zero; (6) win cultural war where the type of firearm is considered a "long shot."

This is unfortunately the same recipe Feinstein wanted with semi-auto rifles and her AWB. It was an attempt of replicating a very successful long term ban. If she managed to extend it in 2004 and we didn't have Heller in 2008, the EBR-s would in a few decades look as far fetched as full auto. This is why we must try to overturn the NFA - to prevent future attempts using the same mechanism.

kcbrown
04-22-2014, 12:08 AM
That's being intellectually dishonest with ones self and for all intents and purposes, setting yourself up for a false positive.;)

As opposed to setting myself up for a false negative? :p :D

kcbrown
04-22-2014, 12:22 AM
Well no, Heller makes it clear that full auto is (at least potentially) outside the categorical protection of the Second Amendment (thanks to Gura throwing it under the bus).


Which brief contained Gura's concession on that. I'd like to read the text for myself.

Also, a question: how would Gura know whether or not that concession was necessary to secure a victory? More to the point, in what way could Gura frame the argument in such a way as to not challenge the NFA as a side effect of his argument?

dantodd
04-22-2014, 12:33 AM
Which brief contained Gura's concession on that. I'd like to read the text for myself.


I believe it was in orals.

Gray Peterson
04-22-2014, 1:11 AM
We don't know yet. And we don't know whether Heller 5 would have been Heller 4 if Gura hadn't conceded some ground (by no means am I condoning it, just looking at it in retrospect.)

Also, look at the development of gay rights. They certainly threw under the bus the whole concept of "marriage" in the beginning. Full auto can, similarly, be back in play down the road.

"They" did not do any such thing. The 1970's lawsuits over marriage post-Loving certainly are not indicator of "throwing under the bus".

IVC
04-22-2014, 2:16 AM
"They" did not do any such thing. The 1970's lawsuits over marriage post-Loving certainly are not indicator of "throwing under the bus".

It was *later*. The court battles, and especially the PR, didn't start with it. Quite the opposite. It was intentionally downplayed in the early stages to get more public support.

Also, "they" was not meant to be exclusionary, just a way to refer to activists.

Tincon
04-22-2014, 2:50 AM
I believe it was in orals.

Correct:

Justice Kennedy: That are not appropriate to–

Mr. Gura: That are not appropriate to civilian use.

Justice Ginsburg: For example?

Mr. Gura: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of. . . .

Justice Ginsburg: But why wouldn’t the machine gun qualify?

General Clement told us that’s standard issue in the military.

Mr. Gura: –But it’s not an arm of the type that people might be expected to possess commonly in ordinary use.

Maestro Pistolero
04-22-2014, 5:04 AM
Let's be more precise. The regulation must serve a compelling government interest, so it's not enough to say "public safety" is a "compelling government interest." Instead, bans targeting law abiding must be proven to serve the compelling government interest of public safety.

That's why we can have laws banning brandishing or carrying in one's hand, but we can't have laws banning safe carrying in public by ordinary law abiding people.

Public safety and national security were no less compelling government interests at the time of founding when the words 'shall not be infringed' were chosen. A result that's contra the obvious intent of the amendment ought to be revisited for its methodology.

If we agree constitutionally that blacks and women should have the same right to vote as everyone else, but then allow regulations that prevent it, then the regulations would have failed constitutional muster. Kachalsky and Woolard fell victim to such Alice in Wonderland logic when their results gave lie to their thinking.

fizux
04-22-2014, 6:54 AM
Mr. Gura: –But it’s not an arm of the type that people might be expected to possess commonly in ordinary use
...yet.

I'm not sure if the transcript missed the word "Solicitor," or if this was intentional

General Clement told us that’s standard issue in the military.

speedrrracer
04-22-2014, 8:01 AM
Mr. Gura: –But it’s not an arm of the type that people might be expected to possess commonly in ordinary use

I don't see this is throwing anything under the bus, but maybe there's a lot of context I'm missing. Given the last 80 years of the NFA, Gura's statement is quite accurate -- it's certainly not something people might be expected to commonly possess in ordinary use.

One of you more legally-inclined can hopefully explain to me: if wolfwood throws strict scrutiny under the bus, or if the antis are conceding strict scrutiny for the RKBA in the home, or Gura throws machine guns under the bus -- these are all just statements made by some lawyers in specific cases, these aren't biding court opinions, right?

IOW, what difference does it make if a lawyer says the sky is made of pineapples? As long as the opinion doesn't say that, is there a legal principle by which one lawyer's words still can have impact on a different case? Thanks for any edumacation

Tincon
04-22-2014, 8:25 AM
I don't see this is throwing anything under the bus, but maybe there's a lot of context I'm missing. Given the last 80 years of the NFA, Gura's statement is quite accurate -- it's certainly not something people might be expected to commonly possess in ordinary use.

He also said that they "are not appropriate to civilian use."

But that's more like his opinion, though it probably colored his second statement about ordinary use, which is much more damaging to our rights.


One of you more legally-inclined can hopefully explain to me: if wolfwood throws strict scrutiny under the bus, or if the antis are conceding strict scrutiny for the RKBA in the home, or Gura throws machine guns under the bus -- these are all just statements made by some lawyers in specific cases, these aren't biding court opinions, right?

IOW, what difference does it make if a lawyer says the sky is made of pineapples? As long as the opinion doesn't say that, is there a legal principle by which one lawyer's words still can have impact on a different case? Thanks for any edumacation

Allow me to make a sports analogy. Let's say you have a football game. The outcome is formally decided by the referees, but is the result of two competing teams trying to score opposite goals. Now assume a player (or several players) on one of the teams decides to put the ball in his own team's goal. Do you think that will have an impact on the outcome?

LostInSpace
04-22-2014, 8:32 AM
As a side issue, my interest in full auto is primarily due to the highly effective ban process: (1) ban *future* sales; (2) register existing; (3) control transfer; (4) grandfather in existing; (5) watch availability slowly go to zero; (6) win cultural war where the type of firearm is considered a "long shot."

This is unfortunately the same recipe Feinstein wanted with semi-auto rifles and her AWB.

One could say that something similar has been happening with "large-capacity" (over 10) magazines in CA. The ruling upholding Sunnyvale magazine ban mentioned that the magazines in question had not been sold in CA for a number of years (or however the judge formulated it). So, yes, grandfathering is just a more politically palatable way to ban stuff - it is no way to preserve the rights long-term.

And then we can get into provisions where some grandfathered items can't be inherited upon the death of the owner. How much closer to outright confiscation can one really get?

Untamed1972
04-22-2014, 8:58 AM
I don't see this is throwing anything under the bus, but maybe there's a lot of context I'm missing. Given the last 80 years of the NFA, Gura's statement is quite accurate -- it's certainly not something people might be expected to commonly possess in ordinary use.

One of you more legally-inclined can hopefully explain to me: if wolfwood throws strict scrutiny under the bus, or if the antis are conceding strict scrutiny for the RKBA in the home, or Gura throws machine guns under the bus -- these are all just statements made by some lawyers in specific cases, these aren't biding court opinions, right?

IOW, what difference does it make if a lawyer says the sky is made of pineapples? As long as the opinion doesn't say that, is there a legal principle by which one lawyer's words still can have impact on a different case? Thanks for any edumacation


Im not a lawyer, but I do there is a certain legal principle which precludes one from arguing one point, and then later arguing the opposite. But I don't know the extent of how its applied. But I don't think one statement in oral arguments rises to that level.

dantodd
04-22-2014, 9:56 AM
Im not a lawyer, but I do there is a certain legal principle which precludes one from arguing one point, and then later arguing the opposite. But I don't know the extent of how its applied. But I don't think one statement in oral arguments rises to that level.

One cannot contest something to which they have previously stipulated. This is specifically on a single case. However; judges have a decent memory and the oral arguments are all available to the court so if a party, or an attorney plays two sides of an issue it may well not go unnoticed. That being said, there are plenty of good attorneys accepted to the SCOTUS bar and there are plenty of plaintiffs. A different attorney arguing for a different client will not be held to Mr. Gura's statement.

speedrrracer
04-22-2014, 10:20 AM
He also said that they "are not appropriate to civilian use."

But that's more like his opinion, though it probably colored his second statement about ordinary use, which is much more damaging to our rights.

emphasis mine

If you're saying it reduced the chances of winning, or increased the chances that the opinion contained unfavorable verbiage of some sort, I agree, but I'm asking if / how it effects court cases other than the case in which the statement(s) appeared, apart from effects on the opinion.


Allow me to make a sports analogy. Let's say you have a football game. The outcome is formally decided by the referees, but is the result of two competing teams trying to score opposite goals. Now assume a player (or several players) on one of the teams decides to put the ball in his own team's goal. Do you think that will have an impact on the outcome?

Sure, you are right, but that's limited to just that game. In your analogy, the fact that player scored against his own team has no effect on the score in any subsequent game (ignoring mental issues). I'm asking if the unfavorable statements made by the lawyer in case A can have an impact in case B, assuming those unfavorable statements aren't reflected in the opinion from case A.

So if (e.g.) wolfwood throws strict scrutiny under the bus via his statements, but we win the case and the judge makes no such reference in the opinion, then we "got away with it" -- we escaped any negative consequences from wolfwood's statements, is that correct?

Tincon
04-22-2014, 10:39 AM
emphasis mine
If you're saying it reduced the chances of winning, or increased the chances that the opinion contained unfavorable verbiage of some sort, I agree, but I'm asking if / how it effects court cases other than the case in which the statement(s) appeared, apart from effects on the opinion.


To the extent it did have an effect on the opinion (you will notice even Scalia treats "M-16 rifles and the like" unfavorably) stare decisis means the effect will carry over to future cases.

So if (e.g.) wolfwood throws strict scrutiny under the bus via his statements, but we win the case and the judge makes no such reference in the opinion, then we "got away with it" -- we escaped any negative consequences from wolfwood's statements, is that correct?

It depends on the statement, and other factors. With something like a standard of scrutiny it is fairly easy to see the harm done. If the court does not adopt it, then we probably "got away with it." Even then however, there is collateral damage. If another case is being argued before the same panel they may have to take time undoing the damage (before any opinion is issued) which detracts from time spent on other key arguments.

But with something like what Gura did, we may not see the effects of the damage until an NFA case reaches SCOTUS. Even then it may not be crystal clear what the effect was. The reason being, he trashed machine guns even though machine guns were not at issue in Heller (which is a large part of the reason it was so stupid). This is true even if another lawyer is arguing the later case.

Keep in mind, the law is primarily about persuasive writing and rhetoric. You present your analysis to the court and try to convince them it is the best and proper analysis. If you are making arguments which support the other team, their position becomes much stronger. Judges are human beings, they don't forget everything they have heard after each case. And of course, there is only one SCOTUS.

fizux
04-22-2014, 11:04 AM
Im not a lawyer, but I do there is a certain legal principle which precludes one from arguing one point, and then later arguing the opposite. But I don't know the extent of how its applied. But I don't think one statement in oral arguments rises to that level.
The fancy word is "estoppel."

For example, the CAAG's office argued their way out of Mehl by claiming the state has no interest -- the policy is purely up to the sheriff, and CAAG basically doesn't care, so Mehl can't sue the state. Now, CAAG is claiming the opposite in Peruta.

IVC
04-22-2014, 11:29 AM
One could say that something similar has been happening with "large-capacity" (over 10) magazines in CA.

It's not just "similar" - it's exactly the same play from the same rulebook.

As far as I can tell, that's one ban mechanism that has been quite effective in the antis' cultural war, but we are fighting back in courts on all fronts. All we need is *some* positive rulings on "ban+grandfather" to put a stop to it.

Untamed1972
04-22-2014, 11:45 AM
The fancy word is "estoppel."

For example, the CAAG's office argued their way out of Mehl by claiming the state has no interest -- the policy is purely up to the sheriff, and CAAG basically doesn't care, so Mehl can't sue the state. Now, CAAG is claiming the opposite in Peruta.

Yea.....that's what I meant :D

Maestro Pistolero
04-22-2014, 12:22 PM
To the extent it did have an effect on the opinion (you will notice even Scalia treats "M-16 rifles and the like" unfavorably) stare decisis means the effect will carry over to future cases.
Heller and McDonald dealt with establishing an individual right to self defense, not the militia purpose, which although now distinguished as a separate component to the right, is still the only enumerated purpose for the right. It makes the self defense purpose no less important, of course.

When the time comes to address the militia purpose, it will be a difficult argument indeed to make that the M16/M4 shouldn't be the most protected weapon in the land. it is the consummate American small arm. Americans have always had vast private arms commonality with our military. Only since 1986 have Americans been banned from buying new stock select-fire rifles.

The SCOTUS acknowledged the anti-tyranny purpose of the 2nd amendment in Heller, saying that while " . . . modern tanks and bombers may limit the degree of fit between the right announced in the second clause, and the militia purpose announced in the first clause, that it cannot change our interpretation of the right." (paraphrasing)

I recall the 9th circuit, when it first (briefly) incorporated the 2nd against the states (pre-McDonald) wrote at some length about the national security and anti-tyranny purpose for the amendment.

It may be too late in the day for a re-opening of NFA registration for select fire . . . I hope not. But it's hard to imagine a cogent argument that the semi-auto, civilian AR15 with factory capacity magazine isn't the obvious, ideal militia weapon. If it isn't, then what would be?

Untamed1972
04-22-2014, 12:44 PM
It may be too late in the day for a re-opening of NFA registration for select fire . . . I hope not. But it's hard to imagine a cogent argument that the semi-auto, civilian AR15 with factory capacity magazine isn't the obvious, ideal militia weapon. If it isn't, then what would be?

But if they court truly does believe in the national security / anti-tyranny (even if by foreign invasion) how could they argue against a "militiaman" needing to possess something commensurate to what his enemy would be carrying?

Every American should be entitled to at least ONE select-fire rifle free of tax-stamp and registration.

jwkincal
04-22-2014, 1:36 PM
The full-auto mode of operation of any class of individual (i.e. NOT crew-served) weapon requires considerable skill and training to be used effectively on the battlefield. If I was given command of a "militia" formed of conscript or non-combat trained soldiers, the first thing I would do is prohibit the use of fully-auto mode on weapons so equipped.

My career in the infantry pre-dates the current era of COIN in West Asia, but when I served, the use of full-auto was fairly rare in the doctrine of combat operations. Things may be different now, but I expect there is a reason that the M16A2 and it's successors often have 3-round burst instead of auto.

RandallH1989
04-22-2014, 9:02 PM
Recent vet, can confirm full-auto is useless and rarely used.

Drivedabizness
04-22-2014, 9:18 PM
Its always great when our betters (aka the "smart/right" people) decide to sacrifice part of the right to secure some other part.

I have the training to have a chance (a small chance), armed with the weapons legally available to me if/when my government comes at me with automatic weapons. Most folks don't. The fact that most folks also don't have the training to make good use of an automatic weapon (e.g. militia duty) is a separate topic for discussion.

rivraton
04-22-2014, 9:55 PM
Recent vet, can confirm full-auto is useless and rarely used.I does sometimes serve a purpose: Suppressing (keeps their heads down) fire.

Danodog
04-22-2014, 10:46 PM
What happened to April 21? I thought we would hear about something by now...

Gray Peterson
04-22-2014, 10:48 PM
What happened to April 21? I thought we would hear about something by now...

Drake was relisted for the 4/25 conference.

Funtimes
04-23-2014, 12:36 AM
The fancy word is "estoppel."

For example, the CAAG's office argued their way out of Mehl by claiming the state has no interest -- the policy is purely up to the sheriff, and CAAG basically doesn't care, so Mehl can't sue the state. Now, CAAG is claiming the opposite in Peruta.

Does estopel work against only the government, or a plaintiff in a single case. I.e. could a plaintiff argue one thing to win one case, and another to win another case?

Tincon
04-23-2014, 1:35 AM
Does estopel work against only the government, or a plaintiff in a single case. I.e. could a plaintiff argue one thing to win one case, and another to win another case?

Generally, no. Estoppel works even for statements outside of court. So if you say one thing publicly, you can't say something else in court. Also, if a court finds something to be a fact (based on your statement or not) and includes it in a decision, it can be "judicially noticeable" in some courts, which means it is an incontestable fact.

fizux
04-23-2014, 5:07 AM
Does estopel work against only the government, or a plaintiff in a single case. I.e. could a plaintiff argue one thing to win one case, and another to win another case?
It depends. Prosecutors do it all the time and get away with it.
There is issue preclusion, claim preclusion, res judicata, and a bunch of other crap that was on some barbri outline somewhere.

Generally, no. Estoppel works even for statements outside of court. So if you say one thing publicly, you can't say something else in court. Also, if a court finds something to be a fact (based on your statement or not) and includes it in a decision, it can be "judicially noticeable" in some courts, which means it is an incontestable fact.
Some of that is permissive CEC 452, some are considered party admissions, and a lot is taken with a grain of salt.
Another component with regard to out of court statements is detrimental reliance; here I think they are just talking about legal arguments.

vagun71
04-23-2014, 7:01 AM
Generally, no. Estoppel works even for statements outside of court. So if you say one thing publicly, you can't say something else in court. Also, if a court finds something to be a fact (based on your statement or not) and includes it in a decision, it can be "judicially noticeable" in some courts, which means it is an incontestable fact.

----

A couple of things. First, Estoppel is generally not applicable against the Government. In a criminal case, one might be able to make a due process argument if the Government applies the law inconsistently or if a Government official provided incorrect advise on which someone detrimentally relied. As a general matter, however, estoppel--an equitable remedy--is not applicable against the Government. Therefore, there is nothing to prevent the Government from arguing inconsistent theories in different cases. As a practical matter, Government attorneys usually agree on policy and usually apply it evenly across similarly situated cases. Double jeopardy is a special -- and very narrow -- brand of estoppel, res judicata, etc., that is based in the Fifth Amendment. It is the only exception to the general rule I stated above.

Second, as a doctrinal matter, a party can never make a concession that applies to another party in a different proceeding. Estoppel, res judicata, collateral estoppel and even double jeopardy only apply as between the same parties.

Additionally, it is not accurate to state that a party's out of court statements will always bind that party. Such statements can, in certain situations be deemed admissions, but that is usually in the context of carving out exceptions to the heresay rule. A party that states "a" in a press conference or in an article is not automatically bound by that statement, though they could be cross-examined about it. Since a lawyer is never going to be cross-examine about his or her own client's case (except in rare circumstances not applicable to this discussion), whatever a lawyer says about a case outside of court or pleadings cannot be the subject of estoppel, res judicata, collateral estoppel, etc.

Having said all that, I'd certainly welcome case law or authority demonstrating that I am wrong. I will be the first to admit that I am not omniscient.

---

Source of knowledge: I am an attorney, clerked for a federal judge and have done plenty of appellate work, including some in SCOTUS.

El Toro
04-23-2014, 7:50 AM
Thanks Vagun71 and welcome to Calguns. :)

Tincon
04-23-2014, 7:53 AM
First off, welcome to calguns Vagun71. Now...

I should have just done like fizux and said "it depends." Hard to sharpshoot that answer. But instead, I tried to give a brief general answer to a non-lawyer about what estoppel means. I didn't say anything about a criminal case, because that's totally irrelevant here.

But hey, I can sharpshoot too. Let's start with this:


Additionally, it is not accurate to state that a party's out of court statements will always bind that party.

Well maybe not "always." But nothing is "always" true. As I said however, generally a party is bound by his or her out of court statements. Authority? Sure, how about the evidence code:

Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it. Cal. Evid. Code § 623

And here is the California Supreme Court explaining how what it calls "equitable estoppel" works in practice:

If, by its letter of March 14, asking plaintiff to proceed with his work under phase two of the contract, Bristol had induced plaintiff to believe that funds had been obtained, and if plaintiff had reasonably relied upon such representation, Bristol could not invoke the condition to defeat its contractual liability. Reasonable reliance resulting in a foreseeable prejudicial change in position is the essence of equitable estoppel, and therefore a compelling basis for preventing a party from invoking a condition that he represented as being satisfied. Parsons v. Bristol Dev. Co., 62 Cal. 2d 861, 869, 402 P.2d 839, 845 (1965)

Let's see, what else do we have...

----
First, Estoppel is generally not applicable against the Government. In a criminal case, one might be able to make a due process argument if the Government applies the law inconsistently or if a Government official provided incorrect advise on which someone detrimentally relied. As a general matter, however, estoppel--an equitable remedy--is not applicable against the Government. Therefore, there is nothing to prevent the Government from arguing inconsistent theories in different cases.

Well that's not even "generally" correct. There are limitations on estoppel against the government where public policy concerns trump equity, but estoppel certainly does apply to the government.

Whether an estoppel exists against the government should be tested generally by the same rules as those applicable to private persons. The government should not be permitted to avoid liability by tactics that would never be countenanced between private parties. The government should be an example to its citizens, and by that is meant a good example and not a bad one. Cruise v. City & Cnty. of San Francisco, 101 Cal. App. 2d 558, 565, 225 P.2d 988, 993 (1951)

A state, as well as an individual, may be estopped where the necessary elements or grounds of estoppel are present (City of Los Angeles v. Cohn, 101 Cal. 373, 35 P. 1002; 31 C.J.S., Estoppel, § 138, p. 405); it may be estopped when acting in its proprietary capacity as distinguished from its governmental capacity (31 C.J.S., Estoppel, § 140, p. 413); and it may be *243 estopped by the acts of its public officials done in the exercise of powers expressly conferred by law, and by their acts or omissions when acting within the scope of their authority. People v. Gustafson, 53 Cal. App. 2d 230, 242-43, 127 P.2d 627, 634 (1942)


----
Second, as a doctrinal matter, a party can never make a concession that applies to another party in a different proceeding. Estoppel, res judicata, collateral estoppel and even double jeopardy only apply as between the same parties.

Of your three statements this is the least incorrect, although I'm not sure I said anything to the contrary. But there are certainly exceptions, I pointed out one of them. And as a practical matter, if you are conceding one thing in discovery in one case, and denying it in another, you are going to have some credibility issues at a bare minimum.

Of course as fizux points out, we are mostly talking about legal arguments, and "generally" no one is held to those, at least not formally. But of course, it depends.

norcalgunguy
04-23-2014, 8:07 AM
Welcome Vagun71. Looking forward to reading your analysis on upcoming cases.

vagun71
04-23-2014, 8:18 AM
Very interesting information. Since I am not a California attorney, I was not aware of CA law. Thank you for providing the citations. In the case of estoppel against the Government, that is exactly the opposite of the law where I practice, and represents a minority view. Of note, even the citation you present states that Government can only be estoppel when acting in a "proprietary capacity." Nevertheless, it is interesting and I appreciate the information.

But, as I said, I am not omniscient and I am always interested in learning!

vagun71
04-23-2014, 8:29 AM
Welcome Vagun71. Looking forward to reading your analysis on upcoming cases.

Thank you. I doubt I have anything to add to the Peruta or Drake discussions at this point that is anything other than idle speculation on my part. If I feel the need to chime in when there is actually something concrete to discuss, I will do so.

Tincon
04-23-2014, 8:33 AM
Of note, even the citation you present states that Government can only be estoppel when acting in a "proprietary capacity."


Better read that again (citations omitted, emphasis added):

it may be estopped when acting in its proprietary capacity as distinguished from its governmental capacity; and it may be estopped by the acts of its public officials done in the exercise of powers expressly conferred by law, and by their acts or omissions when acting within the scope of their authority.

capoward
04-23-2014, 1:37 PM
Guess I have to ask a few questions.

My reading the Peruta decision is that it does not overturn the governing statute, only limiting the issuing authority’s (the County Sheriff) arbitrary dismissal ‘the desire to carry concealed for self-protection’ as ‘Good Cause’.

Regarding the requested intervener status by the CA AG and others…
The 9th Cir. record reveals that the defendant, the Sheriff of San Diego County, has specifically notified the court that that office will not appeal the appellate decision.

I’ve noted within the various Peruta discussions (but haven’t read a specific case) that the CA AG has successfully argued in prior 9th Cir. concealed carry licensing cases that they as a State agent (agency) are not lawfully within the concealed carry licensing issuance schema because the state legislature by statute specifically designated the County Sheriffs as the licensing authority. Specifically that the County Sheriffs do not report to the AG, the AG has no lawful authority to control the discretion of each County Sheriff as to what they accept, or do not accept, to support Good Cause.

So if my understanding is correct regarding the lack of statutory impact and only a limitation on the Sheriff’s discretion to not accept – basically a desire for self-protection – as a Good Cause reason, and the only defendant in the case has lawfully removed them self from the case would not all requests for intervener status including the CA AG fall into a ‘private party arena’?

And if I’m correct regarding the ‘private party arena’ would not the 9th Circuits acceptance of any of the intervener requests supporting the defendants suffer the same, or a similar, spank as the 9th Cir. received from SCOTUS over the Prop 8 appeal – “ruling Wednesday private parties do not have "standing" to defend California's voter-approved ballot measure barring gay and lesbian couples from state-sanctioned wedlock.”

Sorry for the disjointedness of my reasoning and questions. Am I totally out in left field? Or is Peruta ripe for a denial of both the Brady and the CA AG intervener requests?

Tincon
04-23-2014, 3:27 PM
No, I think that's all pretty much spot on.

But Peruta is not opposing the CA AG intervention for the reason I pointed out here: http://www.calguns.net/calgunforum/showpost.php?p=13925367&postcount=77

The Brady request has zero chance.

Basically, the core holding of Peruta is going to be subject to an en banc vote sooner or later, and it is better to have the people that argued Peruta oppose it. Relying on "luck of the draw" might not get such good results.

IVC
04-23-2014, 4:37 PM
Sorry for the disjointedness of my reasoning and questions. Am I totally out in left field? Or is Peruta ripe for a denial of both the Brady and the CA AG intervener requests?

You are very close. Everything you said is correct, but you didn't address the other side of the argument.

It all hinges upon whether the court will see the ruling as invalidating the state's "may issue" law by introducing a "virtual shall issue," or as just a mandate for a sheriff to accept a specific type of "good cause" while leaving the "may issue" intact.

There has been a lot of discussion on this topic and it is better not to reintroduce it, just reminding you that it comes down to how the court will see the case.

capoward
04-23-2014, 5:09 PM
I understand that the plaintiffs aren’t opposing intervener status for the CA AG. And I understand that the core of Peruta – lacking a favorable decision in Drake by SCOTUS – will be challenged in banc in the near future – but…

The 9th Cir. is fully aware that they allowed a private party to intervene as the state agent in defense of a state law and were ultimately spanked by SCOTUS for doing so.
The 9th Cir. is fully aware that the CA AG, based upon multiple judicial filings by the CA AG, that the CA AG is a state agent in defense of the state law governing concealed carry but is not a state agent in defense of the discretionary decision making processes of the state agent tasked by law to issue concealed carry permits. Therefore to grant intervener status to the CA AG would be to so as a private party.
In the Prop 8 case, the proposition committee, the group who financed the entire Prop 8 campaign, requested intervener status in defense of the law and was granted so up through the CA Supreme Court. They were also granted intervener status in defense of Prop 8 by the 9th Cir. through the petition to SCOTUS who rejected the petition stating that no private party had standing to intervene in defense of the law.
So…if a private party has no standing with SCOTUS to defend a state law how could a private party have standing with SCOTUS to defend a discretionary decision?

Also, if the CA AG has the lawful ability to appeal a denial of intervener status in Peruta to SCOTUS, would the 9th Cir. likely hear any Peruta related cases while the SCOTUS petition was pending?

Just wondering…

Rossi357
04-23-2014, 5:47 PM
I remember hearing in the oral arguments, A Judge asked the SD attorney: "Heller said that self defense is the core right of the 2nd, and you don't accept that as good cause." She said: "We think we should still regulate who gets a permit".

Drivedabizness
04-23-2014, 5:51 PM
Forgive a question based on ignorance...but why is "the central holding of Peruta" necessarily destined to be subjected to an en banc vote?

Even if they decide Kamala can intervene, isn't getting an en band review a separate issue? Doesn't review en band become less likely as time goes by (unless dark powers are conspiring to keep the panel ruling "dead" for as long as possible)?

I don't want to do a lot of mental masturbation on what the timeline might be. I've seen enough (the M&A flowchart made my eyeballs bleed) to low that no one can know. I'm just trying to understand why en band is such a surety.

capoward
04-23-2014, 6:18 PM
I'm thinking the perception is that 9th Cir. is that it's comprised of 2/3s being Democrat Presidential appointments with only 1/3 being Republican Presidential appointments any en banc panel could easily be stacked against the Peruta decision should the Chief Judge decide to do so.

Personally I’m not sure that the entire appellant panel isn’t closer to 1/3, 1/3, 1/3 – progressive, middle of the road, and conservative so unless a judge has demonstrated an anti-gun bias in their rulings it’d be hard say any selected panel would not follow the decision making process of the Peruta three and determine that they properly did their work and uphold the decision. I also think there's likely 50% of the 9th Cir. who would prefer to not have to make a decision regarding Peruta period and where that 50% falls from is anyone's guess...

My primary concern is if the CA AG will be acting as a private party vs being either the plaintiff or defendant is that the Peruta will be held in abeyance only to have SCOTUS again spank the 9th Cir. for allowing such to take place – some years from now. Just would make zero sense…

IVC
04-23-2014, 9:10 PM
I understand that the plaintiffs aren’t opposing intervener status for the CA AG.

There are several different grounds for becoming an intervenor and the plaintiffs are opposing the ones that don't apply, while allowing court to decide on the ones that are gray area.

Again, it all comes down to what the case is all about - AG will NOT get the intervenor status as a private party, only as the protector of a state law, should the court determine that it's the state law that is being challenged. Since plaintiffs cannot force the court to see it one way or the other, they are leaving it to the court's discretion. It would come down to discretion regardless - if the court determined that it was about a state law, they would grant the status over plaintiff's objections anyway.

IVC
04-23-2014, 9:14 PM
Forgive a question based on ignorance...but why is "the central holding of Peruta" necessarily destined to be subjected to an en banc vote?

That's the pessimist talk on these boards. In reality, we don't know whether AG will get her status, we don't know whether the court will take anything en banc and we certainly don't know the outcome.

There is also an unpleasant fact that if the AG is granted the intervenor status on the grounds of defending a state law, then Thomas' dissent that the question in front of the panel was "just about concealed carry, not the whole carry scheme" becomes moot. An en banc granted to AG would necessarily have to address the whole law, not just the issuance policy.

wildhawker
04-23-2014, 9:23 PM
That's the pessimist talk on these boards. In reality, we don't know whether AG will get her status, we don't know whether the court will take anything en banc and we certainly don't know the outcome.

There is also an unpleasant fact that if the AG is granted the intervenor status on the grounds of defending a state law, then Thomas' dissent that the question in front of the panel was "just about concealed carry, not the whole carry scheme" becomes moot. An en banc granted to AG would necessarily have to address the whole law, not just the issuance policy.

Welcome to the facial briar patch, Ms. Harris...

-BC

taperxz
04-23-2014, 10:19 PM
Welcome to the facial briar patch, Ms. Harris...

-BC

I was wondering when someone would jump in and say that.

capoward
04-23-2014, 10:52 PM
IVC I understand what you’re saying. And I think we’re on the same page… State law being challenged equals approval of the CA AG intervener request whereas zero challenge of any aspect of the underlying state law equals denial of the CA AG intervener request.

Also noted your further comments to Drivedabizness… Very interesting…

capoward
04-28-2014, 2:00 PM
Another delay by SCOTUS on initial Drake decision. :facepalm:

it time for the 9th Cir. to move forward in Peruta by deciding the intervener petitions? :rolleyes:

FlyNShoot
04-28-2014, 2:12 PM
No, Peruta is waiting for Drake. Which is waiting for Peruta.
And so on...
And so on...

And we remain unarmed while Yee moves another BB bill.

gun toting monkeyboy
04-28-2014, 2:31 PM
No, Peruta is waiting for Drake. Which is waiting for Peruta.
And so on...
And so on...

And we remain unarmed while Yee moves another BB bill.

Ummm... Yee is going to jail, and is currently on suspension. Methinks he won't be proposing any new bills in the foreseeable future.

-Mb

CG of MP
04-28-2014, 2:39 PM
And we remain unarmed while Yee moves another BB bill.

The only thing Yee is moving any time soon are his bowels.
He is not likely to introduce anything but FEAR into those he once called colleagues.
IMO

FlyNShoot
04-28-2014, 4:10 PM
If only that were true...but it is not.

AB 47 (Yee): Bans firearms that use bullet buttons. One of his henchmen will continue to move that bill forward. So the beating goes on.

FlyNShoot
04-28-2014, 4:13 PM
Oops. SB 47

Tincon
04-28-2014, 4:35 PM
Oops. SB 47

That Bill is dead.

FlyNShoot
04-28-2014, 4:51 PM
Yup. I see that now on CA Leginfo site "hearing postponed" as of Aug 2013. I went by the CAL-FFL alert message that it was still active. SMH

Hylas
04-28-2014, 8:09 PM
So is there a deadline for the 9th to respond on if there granting intervenor status or not?

dantodd
04-28-2014, 8:26 PM
So is there a deadline for the 9th to respond on if there granting intervenor status or not?

Nope.

Paladin
04-28-2014, 8:48 PM
So is there a deadline for the 9th to respond on if there granting intervenor status or not?How naive.
Deadlines are what courts impose on parties, not upon themselves.... :p :laugh:

NorCalAthlete
04-28-2014, 9:04 PM
What time limit ARE we waiting on? I'm confused as to mandated times vs delays vs petitions vs….bleh. Couldn't keep up with this thread during mid terms and now I'm completely lost.

aBrowningfan
04-28-2014, 9:17 PM
How naive.
Deadlines are what courts impose on parties, not upon themselves.... :p :laugh:
^^^ This.

dantodd
04-28-2014, 9:26 PM
What time limit ARE we waiting on? I'm confused as to mandated times vs delays vs petitions vs….bleh. Couldn't keep up with this thread during mid terms and now I'm completely lost.

We are waiting on the court to decide if AG Harris has a fight to pick up where Gore decided to leave the case as a loss. She has asked for an en banc review already.

If the court permits her to intervene they will issue a deadline (21 says I believe) for the Paris to brief on the petition for an en banc review. Then we will wait again for the court to rule on their own timeline.

Maestro Pistolero
05-04-2014, 7:30 PM
I just reread the Peruta decision. It really is chock full of substantive and pithy arguments. As I posted elsewhere earlier, I would not want to be a judge trying to assail that mountain of cogent arguments. A person could really look stupid trying. A judge taking on Peruta en banc is a glutton for punishment.

speedrrracer
05-04-2014, 7:51 PM
A judge taking on Peruta en banc is a glutton for punishment.

Or maybe just an anti. I suspect we'll all be reminded of just how many of them there are in the 9th once Peruta (or Baker or Richards) goes en banc.

speedrrracer
05-05-2014, 6:36 AM
Well, if the 9th was waiting for SCOTUS, now that Drake has been denied, Peruta can move forward.

Place your bets, ladies and gentlemen, as we spin the wheel of civil rights

Paladin
05-05-2014, 6:57 AM
Back to the drudge work of pushing more and more CA counties, one by one, into issuing CCWs while we wait (my guess: 1.5 months to 1.5 years!) for Peruta to be finalized (assuming no cert). :(

44.shooter.lb
06-09-2014, 10:24 PM
Has it been two weeks yet?

Baja Jones
06-09-2014, 10:46 PM
Jeepers Mr Wilson

dantodd
06-10-2014, 3:48 AM
Has it been two weeks yet?

We are still waiting on the court to rule on A.G. Harris' petition to intervene.

44.shooter.lb
06-10-2014, 1:42 PM
Has it been two weeks yet?

Yeah - that was sarcasm there...you know "two weeks" standard answer - we're stiill.....uh, waiting (a lot longer than two weeks) - ?? - never mind.

You guys are way too serious sometimes....

Why don't those other two dudes start arguing again? That makes the day go by faster.

ryan_j
06-10-2014, 7:20 PM
They're in the other thread

Dirtbozz
06-10-2014, 8:08 PM
They're in the other thread

And it is best that they stay there.

chris
06-10-2014, 8:43 PM
We are still waiting on the court to rule on A.G. Harris' petition to intervene.

IIRC that she has no standing in the case since the state was not part of the case. but we know that she dam well wont let people in this state get CCW's for just using "self defense" as a good cause.

Oops. SB 47

That Bill is dead.

If only that were true...but it is not.

AB 47 (Yee): Bans firearms that use bullet buttons. One of his henchmen will continue to move that bill forward. So the beating goes on.

they will try to get that one through until it passes and signed.

CCWFacts
06-10-2014, 10:09 PM
IIRC that she has no standing in the case since the state was not part of the case.

If the case is challenging a statute, she may have standing. If it's challenging only the sheriff's application of the statute, she doesn't have standing. You could argue that, even with the Peruta ruling, the sheriff still has GC discretion, because even under Peruta, if I put my GC as "I want to carry a gun so I can brandish it at people who take my parking space", the sheriff can say "no way". That means the sheriff is still exercising discretion and testing for good cause, so the statute is not challenged.

You could also say that the Peruta ruling means that, even though there still is a good cause requirement, the application is so flimsy that it is essentially meaningless. The GC requirement is still there but has become a nullity in practice.

Both ideas make sense to me and I think reasonable people could take either of those two interpretations. If the later is correct, KH has a good argument for intervening.

I personally hope she does intervene, is denied en banc, and asks for cert.

press1280
06-11-2014, 1:12 AM
If the case is challenging a statute, she may have standing. If it's challenging only the sheriff's application of the statute, she doesn't have standing. You could argue that, even with the Peruta ruling, the sheriff still has GC discretion, because even under Peruta, if I put my GC as "I want to carry a gun so I can brandish it at people who take my parking space", the sheriff can say "no way". That means the sheriff is still exercising discretion and testing for good cause, so the statute is not challenged.

You could also say that the Peruta ruling means that, even though there still is a good cause requirement, the application is so flimsy that it is essentially meaningless. The GC requirement is still there but has become a nullity in practice.

Both ideas make sense to me and I think reasonable people could take either of those two interpretations. If the later is correct, KH has a good argument for intervening.

I personally hope she does intervene, is denied en banc, and asks for cert.

It just seems flat out wrong that you can argue throughout the whole proceedings that it's the sheriff's policy alone that's at stake (and even did this in several other related cases as well), then when things don't go your way all of a sudden you should be allowed back in. Total BS, although letting her in may be the only way for the case to get to SCOTUS.

TeddyBallgame
06-11-2014, 1:38 AM
IIRC that she has no standing in the case since the state was not part of the case. but we know that she dam well wont let people in this state get CCW's for just using "self defense" as a good cause.

there are already Sheriff's in this State issuing CCW's for that very reason...she doesn't seem to be stopping them...not only do i feel she doesn't have standing, but, her position at the AG is a statewide position...she shouldn't get to pick and choose which counties can use it and which counties can't

IVC
06-11-2014, 10:09 AM
IIRC that she has no standing in the case since the state was not part of the case. but we know that she dam well wont let people in this state get CCW's for just using "self defense" as a good cause.

There are three tightly related cases: Peruta, Richards and Baker. The last two simply said "see Peruta."

The tricky part is that in Peruta there was a problem with notification of AG, while AG actively argued *against* being on the case in Richards. Being two different cases (albeit with the identical outcome,) what AG did in one is not directly applicable to the other. At least not completely.

Somewhat of a mess, so we have to wait and see...

Tincon
06-11-2014, 10:17 AM
The tricky part is that in Peruta there was a problem with notification of AG

No, there wasn't.

capoward
06-11-2014, 10:42 AM
There are three tightly related cases: Peruta, Richards and Baker. The last two simply said "see Peruta."

The tricky part is that in Peruta there was a problem with notification of AG, while AG actively argued *against* being on the case in Richards. Being two different cases (albeit with the identical outcome,) what AG did in one is not directly applicable to the other. At least not completely.

Somewhat of a mess, so we have to wait and see...Yes - but - listening to the oral arguments the panel specifically asked the defendant's attorney whether the proceedings should be suspended to allow for AG notification. I recollect the collective discussion supported by the defendant was no because the law was not questions, only the Sheriff's implementing policy.

It does raise an interesting question though.

Up through the panel oral arguments and written opinion the Sheriff's implementing policy of the underlying statutory scheme was the issue. The AG is alleging that Peruta destroys the underlying statutory scheme - which is the only means by which she can lawfully be granted intervener status.

So, although the plaintiff's district court filing did not attack the statute, only the Sheriff's implementing policy, could the panel grant the AG's intervener status and then rule upon the constitutionality of the statutory scheme based upon the AG's subsequent brief articulating why/how the Peruta decision destroys underlying statutory scheme?

I don't believe they can reach the level of determining the constitutionality of the states statutory scheme. I wonder though whether they could/would send a "warning shot" to the Sheriffs to not adopt a similar prohibitive standard for other discretionary policy CCW qualifying areas such as GMC now that GC is settled?

CG of MP
06-12-2014, 7:19 AM
Just read the latest in the Birdt case...
http://www.scribd.com/doc/229317260/osc-v-jwb

In so doing, I was struck by what appears to me to be a theme running through that document, namely that the S.O. is acting as an agent of the State when dealing with CCW.

Now, as we try to second guess what the court will do in Peruta, I wonder if some of the principles outlined in the above document might bode well for Harris re: intervention. It would seem so based on my understanding of what I have read above.

If so why is it taking so LONG for the court to send down a ruling.. *mumble*.

Side note: I was fascinated that the above court did not just dismiss the case out of hand... instead they seem to be intent on hearing the case - even to the point of telling one of the parties how to save their own case... is this common?

wolfwood
06-12-2014, 8:05 AM
Its common when the other side has thoroughly ticked off the judge by lying to her. Typically it is unheard of.

CG of MP
06-12-2014, 10:56 AM
Correct.. but if Gore bailed then Harris could walk in because Gore """shouldnt"" be able to speak for the entirety of the state ... right?

IVC
06-12-2014, 11:19 AM
Correct.. but if Gore bailed then Harris could walk in because Gore """shouldnt"" be able to speak for the entirety of the state ... right?

He didn't "bail" - he just accepted a court ruling.

AG did the same when "defending" Prop 8...

ryan_j
06-12-2014, 11:37 AM
This is what he did:

Gore: "OK fine. I'm not challenging the ruling. When the ruling is final I'll issue permits. But no permits before then unless you have good cause."
Court: "Should Kamala Harris intervene?"
Gore: silence
Court: "Sheriff Gore, I'll ask one more time. Should Kamala Harris intervene?"
Gore: "She's an appropriate intervenor. Do what you want."

So by doing that he didn't bail and just accepted the ruling? To me, if he accepted the ruling, he'd be issuing permits by now.

ryan_j
06-12-2014, 11:41 AM
He would if the district court instructs him to. I believe thats his obvious position and what he is waiting for.

The word here isn't "instruct." He's already been instructed. The word is force. The mandate is force. He has to be forced to issue permits before he issues permits.

ke6guj
06-12-2014, 11:43 AM
He didn't "bail" - he just accepted a court ruling.

AG did the same when "defending" Prop 8...

and Gray Davis diid the same with Prop 187

dantodd
06-12-2014, 2:05 PM
He didn't "bail" - he just accepted a court ruling.

AG did the same when "defending" Prop 8...

And much like prop8, SCOTUS may avoid the constitutional question by relying on questions of standing. That would play directly in to Harris's hands too. She can say she did everything she could but the supreme court denied her the right to defend the law.

IVC
06-12-2014, 2:10 PM
And much like prop8, SCOTUS may avoid the constitutional question by relying on questions of standing. That would play directly in to Harris's hands too. She can say she did everything she could but the supreme court denied her the right to defend the law.

Not sure I'd call it "playing in her hands" - she is genuinely upset that a gun control law is being stricken down.

IVC
06-12-2014, 2:13 PM
and Gray Davis diid the same with Prop 187

We have plenty of examples, including the current federal administration. Selective defense of laws in courts, combined with selective enforcement of existing laws makes for a powerful tool if the party in power lets it happen.

However, much like the "nuclear option" in the Senate, it's a double edged sword when the tides turn.

pastureofmuppets
06-12-2014, 3:41 PM
Anyone have a word on this? From another thread...




Nichols v. Harris ruling (http://ia600803.us.archive.org/21/items/gov.uscourts.cacd.518404/gov.uscourts.cacd.518404.166.0.pdf)

A panel decision of the Ninth Circuit
is binding on lower courts as soon as it is published, even
before the mandate issues, and remains binding authority until
the decision is withdrawn or reversed by the Supreme Court or an
en banc court.

ddestruel
06-12-2014, 4:11 PM
"Plaintiff further appears to misinterpret the import of the
Peruta court’s clarification in footnote 19 that it was not
“ruling on the constitutionality of California statutes.” (Obj.
at 2) (quoting Peruta, 742 F.3d at 1173 n.19). This footnote is
part of the discussion in which the Ninth Circuit explained that
because the Second Amendment does not protect any particular mode
of carry, a claim that a state must permit a specific form of
carry, such as open carry, fails as a matter of law. "

capoward
06-12-2014, 8:09 PM
We have plenty of examples, including the current federal administration. Selective defense of laws in courts, combined with selective enforcement of existing laws makes for a powerful tool if the party in power lets it happen.

However, much like the "nuclear option" in the Senate, it's a double edged sword when the tides turn.Very true, but for it to be a double edged sword requires the 'new party in power' to have the intestinal fortitude to do the same.

Gray Peterson
06-12-2014, 8:50 PM
Anyone have a word on this? From another thread...

You know, it's extremely rare when nitwits like Charles Nichols actually accomplish something for the right to self-defense, but yet still personally shooting himself in the foot...

Rossi357
06-13-2014, 12:41 AM
You know, it's extremely rare when nitwits like Charles Nichols actually accomplish something for the right to self-defense, but yet still personally shooting himself in the foot...

Sounds like the judge cut him a lot of slack or gave him enough rope to hang himself.

dantodd
06-13-2014, 5:28 AM
Correct.. but if Gore bailed then Harris could walk in because Gore """shouldnt"" be able to speak for the entirety of the state ... right?

Defendants speak for "the entirety of" much larger groups all the time. Even if Harris intervenes should she be able to speak for the entirety of the ninth circuit? If the case goes to SCOTUS should she be able to speak for the entirety of the nation?

Constitutional case law always has consequences that exceed the initial parties.

dantodd
06-13-2014, 5:35 AM
Anyone have a word on this? From another thread...

Not sure what word there is on it. Yes, Peruta is the law of the land. The trick is to get district courts and CA9 panels to actually rule on it rather than draw out cases pending the end of the appeals process.

CCWFacts
06-13-2014, 8:19 AM
Defendants speak for "the entirety of" much larger groups all the time. Even if Harris intervenes should she be able to speak for the entirety of the ninth circuit? If the case goes to SCOTUS should she be able to speak for the entirety of the nation?

Constitutional case law always has consequences that exceed the initial parties.

The last time the 2A was reviewed by SCOTUS (before the Heller round) was the Miller case, 1939 (https://en.wikipedia.org/wiki/United_States_v._Miller) (which gets very little discussion here for some reason).

In that case, the 2A rights of the entire nation were represented by someone who:


Was a small-time criminal
Possessed a sawed-off shotgun
Was represented by a public defender iirc
His attorney didn't show up to the hearing before SCOTUS
Was dead


Neither the defendants nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling.[3] Miller was found shot to death in April, before the decision was rendered

If that guy, who was dead and his attorney couldn't afford to show up in SCOTUS, was able to carry the burden of defending the 2A for the entire nation, then I'm ok with a sheriff with millions of dollars in legal budget carrying the burden of trying to deny all of us our rights.

HarryS
06-13-2014, 12:48 PM
Not on point to Peruta directly, but an article in the WSJ of today indicates the 9th Circuit got its clock cleaned again, and again wins "the most reversed" CA prize.

In this session, of the 11 cases that got cert, the 9th lost 10 times. 8 of the 10 reversals were unanimous. Kagan and Ginsburg agreed with the majority 10 out 10 times.

Details omitted, a couple of the comments about the reasoning of the 9th were "scalding" (my word) for the intensity of dislike at SCOTUS for the lack of supporting logic mustered by the 9th to justify itself.

I dunno, but this may have some impact on the disposition of Peruta.

The majority opinion will require a great deal of invention to overcome, and SCOTUS, across the board, has little respect for such out of the 9th.

While the court generally has a reputation for buffoonery to uphold, Peruta may be a bridge too far. Allowing Harris to intervene has some real problems in fact, and I would be surprised if the panel allows it. Reversal on en banc would substantially risk reversal at SCOTUS, and while the libs would have the satisfaction of delaying the ruling and further hassling the bitter clingers, the rebuke from SCOTUS could be a deterrent.

Hope springs eternal.

press1280
06-13-2014, 2:58 PM
Not on point to Peruta directly, but an article in the WSJ of today indicates the 9th Circuit got its clock cleaned again, and again wins "the most reversed" CA prize.

In this session, of the 11 cases that got cert, the 9th lost 10 times. 8 of the 10 reversals were unanimous. Kagan and Ginsburg agreed with the majority 10 out 10 times.

Details omitted, a couple of the comments about the reasoning of the 9th were "scalding" (my word) for the intensity of dislike at SCOTUS for the lack of supporting logic mustered by the 9th to justify itself.

I dunno, but this may have some impact on the disposition of Peruta.

The majority opinion will require a great deal of invention to overcome, and SCOTUS, across the board, has little respect for such out of the 9th.

While the court generally has a reputation for buffoonery to uphold, Peruta may be a bridge too far. Allowing Harris to intervene has some real problems in fact, and I would be surprised if the panel allows it. Reversal on en banc would substantially risk reversal at SCOTUS, and while the libs would have the satisfaction of delaying the ruling and further hassling the bitter clingers, the rebuke from SCOTUS could be a deterrent.

Hope springs eternal.

I think if Peruta gets to SCOTUS in its current form, they'll look at the judge who authored the opinion more than which circuit produced it. Sure, the 9th can have some pretty loopy opinions depending on the panel. O'Scannlain correctly called incorporation of the 2A in Nordyke and set up the split that allowed McDonald cert.
There's no way this opinion gets the "scalding" that the others got.

HarryS
06-13-2014, 3:16 PM
Press,
I meant to say that if the 9th reverses O'Scannlian's work via en banc, THAT opinion would be scalded.

The reversal would have to very loopy, and perhaps recent experience would inform the loopy justices that they can't just make stuff up because they know the conclusion they want. They have to start with the facts and work from there, not start with a conclusion and make up a story to justify it.

On the other hand, they may reckon on losing if Peruta gets cert and be satisfied to take one more dump onto the heads of the gunnies by delaying matters a couple of years more.

Sorry if I wasn't clear.

kcbrown
06-13-2014, 3:19 PM
Not on point to Peruta directly, but an article in the WSJ of today indicates the 9th Circuit got its clock cleaned again, and again wins "the most reversed" CA prize.

In this session, of the 11 cases that got cert, the 9th lost 10 times. 8 of the 10 reversals were unanimous. Kagan and Ginsburg agreed with the majority 10 out 10 times.

Details omitted, a couple of the comments about the reasoning of the 9th were "scalding" (my word) for the intensity of dislike at SCOTUS for the lack of supporting logic mustered by the 9th to justify itself.


And the consequences to those on the 9th Circuit that penned these opinions is ...

NOTHING!

Frankly, the 9th Circuit can essentially rely on the fact that SCOTUS has far more demand for its services than it can supply (by orders of magnitude) to issue whatever decisions it wants and, despite the fact that it is the most overturned circuit, have the vast majority of those decisions stand.

The 9th Circuit can inundate SCOTUS with as much buffoonery as it wants. I know of nothing that SCOTUS can actually do about it.

Shotgun Man
06-20-2014, 12:13 PM
The last time the 2A was reviewed by SCOTUS (before the Heller round) was the Miller case, 1939 (https://en.wikipedia.org/wiki/United_States_v._Miller) (which gets very little discussion here for some reason).

In that case, the 2A rights of the entire nation were represented by someone who:


Was a small-time criminal
Possessed a sawed-off shotgun
Was represented by a public defender iirc
His attorney didn't show up to the hearing before SCOTUS
Was dead




If that guy, who was dead and his attorney couldn't afford to show up in SCOTUS, was able to carry the burden of defending the 2A for the entire nation, then I'm ok with a sheriff with millions of dollars in legal budget carrying the burden of trying to deny all of us our rights.

Miller was not represented by a public defender. Had he been, I expect the case would have been defended at the Supreme Court.

Miller was represented by Paul E. Gutensohn, private counsel of the Fort Smith, Arkansas law firm, Warner & Warner. He was appointed by the district court. He initially won the case on a demurrer, but when the government appealed, Gutensohn apparently abandoned his client (likely as part of a government conspiracy).

Gratuitous snipes at the public defender are misplaced. They usually have more resources and commitment than private counsel who are often just chasing a buck.

In most instances, the public defender is committed to ensuring that justice is provided to a disenfranchised and underserved population.

They possess a breadth of experience and knowledge and a dedication to their cause that many private lawyers lack.

These links illustrate how Miller was a political, gun-grabbing orchestration from its inception.

http://gunwatch.blogspot.com/2013/12/the-peculiar-story-of-united-states-v.html

http://www.scribd.com/doc/122415466/us-v-miller

TeddyBallgame
06-23-2014, 1:26 PM
ZZZZZZzzzzzzzzzzzZZZZZZZZZZZ :(

CG of MP
06-23-2014, 4:18 PM
Published on Jun 23, 2014
Sean Brady of the Michel & Associates Peruta legal team discusses potential outcomes if Attorney General Kamala Harris' request to intervene in Peruta case is granted.


http://www.youtube.com/watch?v=QmnvJIF71KM&feature=youtu.be

BigJ
06-23-2014, 4:22 PM
Is this delay typical of this sort of request? If not, is the delay an indicator of anything one way or another?

RobertMW
06-23-2014, 4:32 PM
Is this delay typical of this sort of request? If not, is the delay an indicator of anything one way or another?

Things move at a glacial pace when it comes to firearms litigation. Just sit back and relax, you'll waste your life away worrying about the next time something meaningful is going to get updated on the case.

BigJ
06-23-2014, 4:40 PM
Things move at a glacial pace when it comes to firearms litigation. Just sit back and relax, you'll waste your life away worrying about the next time something meaningful is going to get updated on the case.
Just askin :)

TeddyBallgame
06-24-2014, 12:29 AM
Is this delay typical of this sort of request? If not, is the delay an indicator of anything one way or another?i hope it's an indicator of the court doing all it can in an attempt to determine whether or not KH has any legal standing at all in this case

while i understand exploring all the legal angles may take some time, im hoping that the outcome of their ruling has been researched to the point of being unchallengeable, and, hopefully in our favor, that she has no standing

Scooterpilot
06-24-2014, 11:14 AM
Viewing the current trends in the California legal system, causes me to be a fatalist. This is going to be reversed.

IVC
06-24-2014, 11:37 AM
Viewing the current trends in the California legal system, causes me to be a fatalist. This is going to be reversed.

If that line of reasoning worked, we wouldn't get this brilliantly written decision in the first place. What gives?

Frisco3Gun
06-24-2014, 12:11 PM
Please just someone tell me when it's over.

Bigbuyer2477
06-24-2014, 12:58 PM
If it is granted en banc I believe it will be reversed. Unfortunately this is a matter of great importance in CA for the wrong reasons, and they will most likely Grant en banc review. This most likely will not be granted certiorari at the SCOTUS because they avoid gun cases like the plague. I think they lefted at "This was pushed down to the states via 14A and we ruled 2A is a n individual right....You guys figure out the rest"

CG of MP
06-24-2014, 1:32 PM
But do we not stand a better chance than not of it NOT being granted en banc?

Is not the original pannel (the ones that sided with us and wrote that brilliant piece) the ones that will be allowed to tell K Harris to sit this one out?

If it is the original pannel why would they put their work up for en banc if they did not have to?


If I am wrong about that then yea all bets are off.

Rossi357
06-24-2014, 1:36 PM
Please just someone tell me when it's over.

It ain't over till it's over.

HarryS
06-24-2014, 1:49 PM
On the merits, Harris should be rebuffed and en banc denied. The panel can make those decisions and to do otherwise would be to reverse themselves. I don't see that.

Another judge on the 9th can call for en banc, and I guess that has a good chance of occurring.

The level of buffoonery in a reversing en banc opinion may prompt SCOTUS to take the case and whack the 9th again.

Then, again, we could lose the lot.

CZ man in LA
06-24-2014, 2:11 PM
Whatever happened to the right of a speedy trial? The justice system moves too slow compared to the fast paced society we live in today.

ke6guj
06-24-2014, 2:26 PM
Whatever happened to the right of a speedy trial? The justice system moves too slow compared to the fast paced society we live in today.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

there is no criminal prosecution in this case, so no 6th amendment right.

lhecker51
06-24-2014, 3:53 PM
And the consequences to those on the 9th Circuit that penned these opinions is ...

NOTHING!

Frankly, the 9th Circuit can essentially rely on the fact that SCOTUS has far more demand for its services than it can supply (by orders of magnitude) to issue whatever decisions it wants and, despite the fact that it is the most overturned circuit, have the vast majority of those decisions stand.

The 9th Circuit can inundate SCOTUS with as much buffoonery as it wants. I know of nothing that SCOTUS can actually do about it.

The 9th Circuit knows it's primary mission is to support the loons and care not if they are overturned as they are quite proud of their own despicable record. They are crusaders for progressive change and will continue to bash their collective heads into the SCOTUS wall until they breathe their last breath and hand over the torch to the next generation of activist judges.

kcbrown
06-24-2014, 3:54 PM
If that line of reasoning worked, we wouldn't get this brilliantly written decision in the first place. What gives?

That doesn't follow. Statistical outliers may still occur even when they deviate substantially from the general trend. The question is not if they happen, it is how often.

The legal system has a substantial randomness factor built into it, namely the mechanism of drawing panels and assigning them to cases. It appears that, for the 9th Circuit, the process is computerized. Inasmuch as the general orders don't specify the method by which judges are selected for panels and cases assigned to those panels (only that the clerk's office is the entity that does the assignments, and that the process is computerized), it's difficult to say how random the assignment method really is.

lhecker51
06-24-2014, 3:59 PM
Please just someone tell me when it's over.

It will never be over. Our elected officials already are doing an end run by proposing new laws that will eventually make ALL California residents prohibited persons. If you can't get rid of the 2nd Amendment, then just make it impossible to exercise through these new "common sense" gun control laws. Eventually they will have a zero tolerance law that will permanently strip 2nd Amendment rights for even the slightest infraction. That is the direction our legislature is going in.

Bigbuyer2477
06-24-2014, 4:18 PM
But do we not stand a better chance than not of it NOT being granted en banc?

Is not the original pannel (the ones that sided with us and wrote that brilliant piece) the ones that will be allowed to tell K Harris to sit this one out?

If it is the original pannel why would they put their work up for en banc if they did not have to?


If I am wrong about that then yea all bets are off.

There are more "California" judges than not, so when you get a majority group to hear en banc you are more likely to get the anti gun judges on the panel.

Of course if no en banc is granted then I would bet scotus won't hear it. In any case it won't automatically make the standards lower than what it is now besides removing the "need" requirement. Who knows, 50 yard qualifying test, 20 year background check, and possibly mandatory liability insurance coverage.

IVC
06-24-2014, 5:25 PM
Statistical outliers may still occur even when they deviate substantially from the general trend.

Statistical outliers have treated us pretty well recently...

An "outlier" of the kind we talk about can erase a lot of bad decisions.

kcbrown
06-24-2014, 5:48 PM
Statistical outliers have treated us pretty well recently...


The only post-Heller statistical outlier that I'm aware of is Peruta. Moore isn't one because the dominant political affiliation there is Republican.



An "outlier" of the kind we talk about can erase a lot of bad decisions.

That doesn't make it any less of an outlier.

ryan_j
06-27-2014, 1:36 PM
There are more "California" judges than not, so when you get a majority group to hear en banc you are more likely to get the anti gun judges on the panel.



Of course if no en banc is granted then I would bet scotus won't hear it. In any case it won't automatically make the standards lower than what it is now besides removing the "need" requirement. Who knows, 50 yard qualifying test, 20 year background check, and possibly mandatory liability insurance coverage.




If SCOTUS doesn't hear it we will have a split billions of miles wide...that is unprecedented.

LoneYote
06-27-2014, 1:58 PM
If SCOTUS doesn't hear it we will have a split billions of miles wide...that is unprecedented.
It also means nothing... SCOTUS can ignore anything it wants to ignore. If there is some rule, regulation, or petition with the ability to FORCE SCOTUS to take a case please enlighten us all.

CZ man in LA
06-27-2014, 4:19 PM
It also means nothing... SCOTUS can ignore anything it wants to ignore. If there is some rule, regulation, or petition with the ability to FORCE SCOTUS to take a case please enlighten us all.

Certiorari before judgment (http://en.wikipedia.org/wiki/Certiorari_before_judgment)

Could be tried, but rarely granted.

Bolt_Action
06-30-2014, 9:20 AM
This whole situation is outrageous. The 9th ruled MONTHS AGO that millions of people were having their constitutional rights violated, and what's being done about it? NOTHING! The amount of time that has passed since the court's ruling would not be considered reasonable in anyone's book. At this rate, it looks as if people's rights will be violated indefinitely.

Untamed1972
06-30-2014, 9:27 AM
This whole situation is outrageous. The 9th ruled MONTHS AGO that millions of people were having their constitutional rights violated, and what's being done about it? NOTHING! The amount of time that has passed since the court's ruling would not be considered reasonable in anyone's book. At this rate, it looks as if people's rights will be violated indefinitely.

And what about the Palmer v. DC case.....that court has just be "sitting on" that case for over 5 YEARS now!!! That is simply unacceptable. There is simply no excuse or justification for such a thing.