PDA

View Full Version : McKay v. Hutchens (CCW)


fizux
08-23-2013, 1:16 AM
McKay v. Hutchens [Orange County]
Issue: 2A right to bear arms in public.

Current Status:
As of 3/24/2014 - Stayed pending decision in 4 cases that have now all been decided (except for potential petitions en banc).

3/20/2014 - Baker (http://cdn.ca9.uscourts.gov/datastore/memoranda/2014/03/20/12-16258.pdf) decided (unpub).
3/13/2014 - Citation of Supp. Auth. filed by Appellants.
3/5/2014 - Richards decided (unpub).
2/13/2014 - Peruta published.
11/18/2013 - Chovan opinion (http://cdn.ca9.uscourts.gov/datastore/opinions/2013/11/18/11-50107.pdf) published.
11/12/2013 - Stay pending Chovan, Peruta, Richards, and Baker.
10/7/2013 - Oral Arguments (Audio (http://cdn.ca9.uscourts.gov/datastore/media/2013/10/07/12-57049.wma)).
8/1/2013 - Oral Arguments scheduled for 10/7/2013 at 9:30am, ctrm 1, Pasadena.
3/4/2013 - Reply Brief (http://www.archive.org/download/gov.uscourts.ca9.12-57049/gov.uscourts.ca9.12-57049.51.0.pdf).

Trial Court: C.D. Cal. (Southern Division)
Case No.: 8:12-cv-01458
Docket: http://ia601505.us.archive.org/25/items/gov.uscourts.cacd.541739/gov.uscourts.cacd.541739.docket.html

Appellate Court: 9CA
Case No.: 12-57049
Docket: http://ia601808.us.archive.org/25/items/gov.uscourts.ca9.12-57049/gov.uscourts.ca9.12-57049.docket.html

Links:
Michel & Assoc. Case Tracker: http://michellawyers.com/mckay-v-sheriff-hutchens/

Paladin
02-13-2014, 10:53 PM
McKay v. Hutchens [Orange County]
Issue: 2A right to bear arms in public.

Current Status:
As of 11/13/2013 - Stayed, pending Chovan (http://cdn.ca9.uscourts.gov/datastore/opinions/2013/11/18/11-50107.pdf), Peruta, Richards, and Baker.

11/18/2013 - Chovan opinion (http://cdn.ca9.uscourts.gov/datastore/opinions/2013/11/18/11-50107.pdf) published.
11/12/2013 - Stay pending Chovan, Peruta, Richards, and Baker.
10/7/2013 - Oral Arguments (Audio (http://cdn.ca9.uscourts.gov/datastore/media/2013/10/07/12-57049.wma)).
8/1/2013 - Oral Arguments scheduled for 10/7/2013 at 9:30am, ctrm 1, Pasadena.
3/4/2013 - Reply Brief (http://www.archive.org/download/gov.uscourts.ca9.12-57049/gov.uscourts.ca9.12-57049.51.0.pdf).
I see you forgot to update the "Current Status" after Chovan was published, to remove it from the list of cases that are keeping McKay stayed.

As of today, you can also remove Peruta from that list (or wait until a decision re. en banc appeal).

The question I have is do all of those cases really have to be finally decided before McKay can proceed, or is there some issue that is common to them that it will only take one of those cases to finally decided which will allow McKay to go forward? IOW, was the issue that stayed McKay decided in Peruta, or must we wait for Richards and Baker decisions from the 9th before McKay gets moving again?

fizux
02-14-2014, 1:36 AM
Thanks. Will do.

The list was based upon the stay order (which may well have been updated/amended since I last checked).

press1280
02-16-2014, 3:46 AM
I see you forgot to update the "Current Status" after Chovan was published, to remove it from the list of cases that are keeping McKay stayed.

As of today, you can also remove Peruta from that list (or wait until a decision re. en banc appeal).

The question I have is do all of those cases really have to be finally decided before McKay can proceed, or is there some issue that is common to them that it will only take one of those cases to finally decided which will allow McKay to go forward? IOW, was the issue that stayed McKay decided in Peruta, or must we wait for Richards and Baker decisions from the 9th before McKay gets moving again?

Logically it should only wait for resolution (en banc or final order from the district court or SCOTUS) for Peruta since it's only challenging "good cause". Richards and Baker have a few other aspects not present in McKay.
But, if the order said stayed for all 3 cases, they may just do that and wait for resolution in all 3.

sbrady@Michel&Associates
02-20-2014, 11:05 AM
http://www.ocregister.com/articles/sheriff-602509-concealed-county.html?page=1

Liberty1
02-20-2014, 11:16 AM
http://www.ocregister.com/articles/sheriff-602509-concealed-county.html?page=1

Does that moot the case?

Calplinker
02-20-2014, 11:53 AM
Does that moot the case?

Not in my mind. If you go to their website, the SO explains that their change in policy is due to Peruta, BUT if a stay is issued for either en ban or a SCOTUS cert, then they may require supplemental good cause be submitted that conforms to their current standard (which is tough to meet).

Maestro Pistolero
02-20-2014, 12:54 PM
Does that moot the case?No. The case is against San Diego County Sheriffs, not Orange County, and San Diego already lost. San Diego has not announced such a change in policy. Rather, San Diego Sheriffs Department has said they will hold self-defense applications in "abeyance" while the "legal issues are resolved".

It wouldn't surprise me if they tried some funny business ala Chicago like rewriting their administrative policy just enough to claim the case is moot just in advance of the issuance of the mandate.

Rossi357
02-20-2014, 4:02 PM
Maybe they know that SD isn't going to ask for en banc.

Calplinker
02-20-2014, 7:28 PM
Maybe they know that SD isn't going to ask for en banc.

No chance. SD will ask for en banc as there is no down side for them.

If en banc is granted, the ruling will be stayed, giving them time....

If en banc is denied, they are right back to where they are now. They gained time.... and lost nothing. If en banc is granted, all comes full stop for months. Again.....more time is gained.

Should they not be granted an en banc review? Ask for cert and a stay while SCOTUS ponders. Again, more time......

If I was an anti, this is what I would do.

From a judicial stand point, the anti's are momentarily in retreat. They are falling back and at the Federal level, their best hope is that one of the Heller 5 dies or has to retire.

That's the game changer they need. Short of that, they will fight a battle of attrition with sympathetic state courts and legislatures like we have here in CA.

Tick tock......

Funtimes
02-20-2014, 9:22 PM
People keep forgetting that two other cases are due out from this too. It's not all on Peruta and what they do.

Funtimes
02-20-2014, 9:24 PM
http://www.ocregister.com/articles/sheriff-602509-concealed-county.html?page=1

I would think if I were the city we would just try to stipulate a dismissal and end that case out easily.

Paladin
02-21-2014, 7:26 PM
No. The case is against San Diego County Sheriffs, not Orange County, and San Diego already lost. San Diego has not announced such a change in policy. Rather, San Diego Sheriffs Department has said they will hold self-defense applications in "abeyance" while the "legal issues are resolved".
The question was whether the change in OC's policy moots the McKay case against Hutchens-OC (that's what this thread is about), not the Peruta case against Gore-SD.

My guess is that given Hutchens is willing to change to a virtual Shall Issue policy before Gore-SD has exhausted their appeals shows that once those options are no longer available, she'll capitulate quickly and the McKay case will be mooted. But we're not there yet....

fizux
03-24-2014, 7:53 PM
OP updated with links.

The question was whether the change in OC's policy moots the McKay case against Hutchens-OC (that's what this thread is about), not the Peruta case against Gore-SD.

My guess is that given Hutchens is willing to change to a virtual Shall Issue policy before Gore-SD has exhausted their appeals shows that once those options are no longer available, she'll capitulate quickly and the McKay case will be mooted. But we're not there yet....
Two issues:
1. If Peruta gets withdrawn pending en banc, then what?
2. If this case goes away, can the Sheriff (or a newly elected Anti) change the policy and go back to vNI?

Paladin
03-25-2014, 6:06 AM
Two issues:
1. If Peruta gets withdrawn pending en banc, then what?
If CA AG Harris is allowed to intervene (I'd give that just over 50:50 chance), and CA9 votes to take it en banc (I'd give that less than 50:50 chance), and Peruta gets withdrawn, what will Hutchens do? I'm pretty confident she'll keep issuing for SD as GC despite the law reverting, so to speak, back to pre-Peruta opinion status. Why? (1) When she came in, she HAD to prove she was not going to let anyone benefit from Carona's corruption, that her admin. was going to be different, and a lot of good, law-abiding CCWers in OC became roadkill (necessary losses in her mind), in proving that she's legit. Things got really messy -- it was pretty much a political fiasco.

She did NOT have to go vSI right after Peruta. She knew plenty well that it could be appealed. Yet she went for it. IMHO, she is not going to go back and go thru all that again without even having the political cover of doing it to weed out corruption. Plus, it would make her seem so short sighted that she's flip-flopping, being blow around by every change in the direction of the political winds -- not good for a "leader". Plus, I don't think the local media will give her much political cover if she switches back so soon.

(2) If she was going to yank SD=GC if Peruta went en banc, she would not have gone thru all she and the BoS did and are doing to get funding for all those retired LEOs to help process the new CCW apps. That was not a minor accomplishment. Neither the sheriff nor the BoS will look good if they suddenly say, "Our bad. We're putting this on hold for a year since CA9 just took Peruta en banc. We'll revise the budget once again." :facepalm:

2. If this case goes away, can the Sheriff (or a newly elected Anti) change the policy and go back to vNI?
I assume you mean McKay by "this case" and not Peruta.

McKay won't move forward or "go away" until Peruta is final (i.e., Peruta does not go en banc, or it either it stands or falls en banc or at SCOTUS).

If Peruta does NOT go en banc (nor to SCOTUS), Peruta is good law, end of story. No going back to vNI. After, oh, I'd guess about 5 years, too many OC residents will have CCWs for an anti to get elected, even if they could go back to vNI.

If Peruta DOES go en banc (but not to SCOTUS), and we win, again, end of story, no going back to vNI, and, after 5 years or so of no major problems and lots of CCWers, no anti will be able to get elected on an anti platform.

Only thing that could hurt us in either of these cases is SCOTUS taking a different Carry case (e.g., Drake/Palmer), and we lose (thus gutting Peruta's holding). Then we're back to playing county politics. Best to help as many folks get their OC CCWs to "consolidate" our gains (political power), in the OC to make any attempt to switch back to vNI a political bloodbath....

If Peruta DOES go en banc (but not to SCOTUS), and we lose, Hutchens said she'd reevaluate the her policy again at that time. Our job is to get as many folks their CCWs before then (~1 year), so that we're too politically powerful for her to switch back (barring a CCWer turning into a nutcase and shooting up a school, or the like).

If Peruta gets cert and we lose, HI, CA, and the northeast anti states are all back in the political fight for getting local authorities to issue and/or to change state law/s to Shall Issue. Good luck with that!

If Peruta gets cert and we win, that's the end of that for the entire nation (until composition of SCOTUS changes and the law "evolves" ....).

Paladin
06-28-2015, 10:58 AM
Since Hutchens has abandoned vSI (SD = GC), McKay will resume once the Peruta-Richards en banc panel releases its decision.

Until then (my guess is before New Years Day), time for another sandwich and a nap.... :sleep1: