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View Full Version : Bauer v. Harris (DROS Fees) - Appeal to 9th, 7/20/15


fizux
09-03-2013, 1:12 PM
Bauer v. Harris
Issue: Excessive DROS Fees

Current Status as of 3/24/2014: Discovery; MSJs to be scheduled by 11/17/2014.

9/30/2013 - Scheduling order - Discovery 8/15/2014; Dispositive Motions 11/17/2014; Pretrial 2/10/2015; Jury Trial 3/24/2015.
8/07/2013 - Answer to SAC.
7/24/2013 - Second Amended Complaint.
3/8/2012 - Answer (http://www.archive.org/download/gov.uscourts.caed.228128/gov.uscourts.caed.228128.13.0.pdf) to FAC.
2/09/2012 - First Amended Complaint (http://www.archive.org/download/gov.uscourts.caed.228128/gov.uscourts.caed.228128.12.0.pdf).
8/25/2011 - Complaint (http://www.archive.org/download/gov.uscourts.caed.228128/gov.uscourts.caed.228128.2.0.pdf).

Trial Court: E.D. Cal.
Case No.: 11-cv-1440
Docket: http://ia600700.us.archive.org/16/items/gov.uscourts.caed.228128/gov.uscourts.caed.228128.docket.html

Michel & Assoc. News Release (http://michellawyers.com/2011/national-rifle-association-crpa-foundation-file-lawsuit-challenging-firearm-sales-%e2%80%9cfees%e2%80%9d/)

taperxz
09-03-2013, 3:41 PM
Sweet!

Casual_Shooter
09-03-2013, 4:16 PM
The link goes to an article from 2011. Does your post indicate something is happening currently?

fizux
09-03-2013, 8:24 PM
The link goes to an article from 2011. Does your post indicate something is happening currently?
Nope, it means that I am going to work on fleshing out the info on this case and update the OP shortly*.

* a period of time approximately equal to two weeks.

Casual_Shooter
09-04-2013, 5:31 PM
Nope, it means that I am going to work on fleshing out the info on this case and update the OP shortly*.

* a period of time approximately equal to two weeks.

Excellent. I appreciate your recent posts with details of the different cases.

readysetgo
06-13-2014, 10:24 AM
Another DROS fund raid in the works... seems relevant news.

Calguns discussion thread here: SB 580 - $15 Million raid of fees paid by gun owners, to fund APPS confiscation / DOJ (http://www.calguns.net/calgunforum/showthread.php?p=14282145)

Drivedabizness
06-13-2014, 5:15 PM
Jeezuz H - is this pace not glacially slow???

I suppose we have to take the corn holing for another year minimum - an injunction wasn't in the cards?

Librarian
03-04-2015, 2:13 PM
Ruling today - http://law.justia.com/cases/federal/district-courts/california/caedce/1:2011cv01440/228128/60/

Decision and order (http://cases.justia.com/federal/district-courts/california/caedce/1:2011cv01440/228128/60/0.pdf?ts=1425378259)
In any event, the DROS fee imposes only a $19.00 fee on firearm transactions. Under any level of scrutiny, the DROS fee is constitutional because it places only a marginal burden on “the core of the Second Amendment,” which is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Peruta, 742 F.3d at 1181 (quoting Heller, 554 U.S. at 635).6

M. D. Van Norman
03-04-2015, 2:17 PM
Since it would only be a “marginal burden,” can we please, please place a similar fee on the right to vote? :rolleyes:

CCWFacts
03-04-2015, 2:25 PM
Since it would only be a “marginal burden,” can we please, please place a similar fee on the right to vote? :rolleyes:

If voter registration required ID, a background check, and costed $19, and there were no waivers or fee assistance programs available, Obama would never have been president. I would be 100% ok with a $19 voter reg fee!

gobler
03-04-2015, 2:38 PM
Since it would only be a “marginal burden,” can we please, please place a similar fee on the right to vote? :rolleyes:

Or how about a basic test on political science. You know, to make sure the voters understands how our form of government works? :rolleyes:

readysetgo
03-04-2015, 2:55 PM
How 'bout $19 x 2,000,000? The approximate amount they've been trying to swindle for their "marginal" burden.

:cuss:

thorium
03-04-2015, 3:12 PM
While we don't like the decision, this was a District Court judge appointed by George W Bush, and as an objective legal matter, it does seem he was just following 9CA precedent.

Just another reason why we need more circuit and SCOTUS level precedent and we're going to have a mixed bag of results until there is more jurisprudence out there..

RobertMW
03-04-2015, 3:29 PM
Under any level of scrutiny, the DROS fee is constitutional because it places only a marginal burden on “the core of the Second Amendment,”

:facepalm:

This whole "It's not strict scrutiny, therefore the law doesn't have to be well tailored," argument is getting very frustrating.

I get the argument that going up and down the scrutiny levels that the burden can be more or less on the .gov to prove that it is a necessary law for their stated goal, but clearly stupid crap, like charging fees in excess of what is necessary to recuperate the costs of running a program, is way too easy to blow through the courts.

Where are these judges found? Do they not take some basic logic and mathematics along with their ten-thousand english classes? I'm glad that the law was written well, but we all give a damn about what it DOES!

Ahimoth
03-04-2015, 3:32 PM
On a positive note, I do like that they made reference to Peruta.

wildhawker
03-04-2015, 3:34 PM
The court's mention of scrutiny was pretty simply limited to it saying the law would pass any level of muster were it even necessary to perform a heightened scrutiny analysis; the core holding is that the law falls outside the scope of the Second Amendment.

-Brandon

ddestruel
03-04-2015, 5:14 PM
gets back to that discussion about the religious freedom restoration act. instructions from congress to the courts on the level of scrutiny to apply..... do not forget how rulings were falling prior to RFRA being passed..... many church/state rulings mirrored what we are battling a quagmire of inconsistent rulings...

maybe we should pull back from he 9th on challenges and get some better precedence out of 5th, 6th, 7th and then go back after some bites of the apple.... geesh what a disappointing day but not surprising these guys are bound by the 9CA precedence

CrazyPhuD
03-04-2015, 5:25 PM
The court's mention of scrutiny was pretty simply limited to it saying the law would pass any level of muster were it even necessary to perform a heightened scrutiny analysis; the core holding is that the law falls outside the scope of the Second Amendment.

-Brandon

Did the original DROS fee pass by 2/3rds? I assume not and if the funds are being used for things other than running background checks(that are in many cases WAY behind) then doesn't it then become an illegal tax since it didn't meet the 2/3rds threshold?(or is that part of the DROS fee raiding lawsuit).

wildhawker
03-04-2015, 7:19 PM
Did the original DROS fee pass by 2/3rds? I assume not and if the funds are being used for things other than running background checks(that are in many cases WAY behind) then doesn't it then become an illegal tax since it didn't meet the 2/3rds threshold?(or is that part of the DROS fee raiding lawsuit).

That's the state case.

BLC
03-04-2015, 8:26 PM
There needs to be a legal stuff for idiots thread...

jaymz
03-04-2015, 8:52 PM
What's with all the damn losses lately? One step forward, two steps back.

Librarian
03-04-2015, 9:13 PM
There needs to be a legal stuff for idiots thread...

So, start it and provide what you think people need.

You might consider a more neutral title, though.

readysetgo
03-05-2015, 1:06 PM
Appeal filed in Federal District Court: Unconstitutional Firearms Sales “Fee” (http://www.crpa.org/bauer-v-harris/)

Attorneys for the NRA, CRPA Foundation, Herb Bauer’s Sporting Goods, and individual firearm owners plan to appeal the decision and take every step necessary to enjoin the State’s unconstitutional use of DROS funds. If Plaintiffs prevail, DOJ’s use of DROS funds to sponsor APPS would be deemed unconstitutional and the DROS fee will likely be lowered. Briefing will commence in the Ninth Circuit Court of Appeals. Please stay tuned for further updates on this case as it proceeds on appeal.

JaredKaragen
03-05-2015, 2:00 PM
They quoted it's a "marginal burden"... I.e. an infringement. No?

You don't need to pay a fee to plead the 5th, exercise the first, etc....

RipVanWinkle
03-05-2015, 2:58 PM
The grim topic notwithstanding, Judge O'Neill commits a colossal Freudian Slip by misquoting Heller here:

(2010). The Supreme Court explained in Heller that although we do not undertake an exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be taken to cast doubt on
longstanding longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms. 554 U.S. 626-27. Rather, the Court indicated that such regulations are “presumptively lawful.”
Id. at 627

He misquotes by using "longstanding" twice, as though emphasizing it, and then proceeds to drop that adjective from his analysis. Whatever else the DROS fee or its diversion to APPS might be, it's certainly not longstanding!

:facepalm:

OleCuss
03-06-2015, 3:16 AM
IANAL so I may be totally off-base, but I like the idea of an appeal on this one. I thought/think it is a pretty good case.

I'm not overly hopeful at the Circuit level but it might actually have some legs at the SCOTUS level?

Daydreams are nice. . .

bandook
03-07-2015, 8:47 PM
SCOTUS muddied the waters last year with upholding the Texas voter ID law that one had to get (the ID) on their own dime.
So it appears that a 'marginal' cost seems to be acceptable to exercise a fundamental right.

sbrady@Michel&Associates
07-20-2015, 9:35 AM
Just wanted to let everyone know that we have filed Plaintiff-Appellants' opening brief in this matter before the Ninth Circuit, here is a link: http://michellawyers.com/wp-content/uploads/2011/08/Bauer_Appellants-Opening-Brief1.pdf

AG Harris will file a responsive brief, then we will have an opportunity to reply, then the Court will set an oral argument date sometime within the next year or so, then we wait another 6-9 months for an opinion. We will try to keep everyone updated as things happen.

readysetgo
07-20-2015, 10:10 AM
Just wanted to let everyone know that we have filed Plaintiff-Appellants' opening brief in this matter before the Ninth Circuit, here is a link: http://michellawyers.com/wp-content/uploads/2011/08/Bauer_Appellants-Opening-Brief1.pdf

AG Harris will file a responsive brief, then we will have an opportunity to reply, then the Court will set an oral argument date sometime within the next year or so, then we wait another 6-9 months for an opinion. We will try to keep everyone updated as things happen.
From the linked doc, Summary of Argument:
Just as a state may not charge a fee that assumes every adult bookstore will violate obscenity laws, or that every marriage will result in domestic violence, the state may not charge a fee that assumes everyone who lawfully obtains a firearm will someday become prohibited from possessing it.
Thank you for the update.

Might you explain for us the status of the similar but seperate suit over here: Gentry v. Harris - CGSSA and NRA lawsuit Challenging DOJ Raid of DROS Fees (http://www.calguns.net/calgunforum/showthread.php?t=832303) ?

sbrady@Michel&Associates
07-28-2015, 5:38 PM
Per your request, I have provided an update about the Gentry et al. v. Harris et al. case on that thread.

wolfwood
11-02-2016, 11:26 AM
10/27/2016 40 This case is being considered for the February 2017 San Francisco oral argument calendar. The exact date of your oral argument has not been determined at this time.
The following is a link to the upcoming court sessions: http://cdn.ca9.uscourts.gov/datastore/uploads/calendar/sitdates_2017.pdf.
Please review these upcoming dates immediately to determine if you have any conflicts with them. If you do have conflicts, please inform the Court within 3 days of this notice by sending a letter to the Court using CM/ECF (Type of Document: File Correspondence to Court; Subject: regarding availability for oral argument).
The Court discourages motions to continue after this 3-day period.
The clerk's office takes conflict dates into consideration in scheduling oral arguments but cannot guarantee that every request will be honored. Your case will be assigned to a calendar approximately 10 weeks before the scheduled oral argument date.
Note that your case will be set for hearing in due course if it is not assigned to this calendar.
In addition, if parties would like to discuss settlement before argument is scheduled, they should jointly request a referral to the mediation unit. Such a referral will postpone the calendaring of oral argument. All such requests must be made within 3 days of this notice by sending a letter to the Court using CM/ECF (Type of Document: File Correspondence to Court; Subject: request for mediation). Once the case is calendared, it is unlikely that the court will postpone argument for settlement discussions.[10176190] (AW) [Entered: 10/27/2016 11:51 AM]

the ninth circuit is having arguments for every second amendment appeal in feb that is not a carry case

wolfwood
04-20-2017, 11:14 AM
oral arguments just happened

https://www.youtube.com/watch?v=QI4y_Dk9NBE&feature=youtu.be

Drivedabizness
04-20-2017, 3:11 PM
IANAL but perhaps, just perhaps (since judges are people and people tend to like a straight answer to a straight question - which I surmise is NOT taught in law schools) how about from this moment on, when asked about intermediate scrutiny all the pro gun attorneys say "no - we do not stipulate that interest balancing is appropriate here at all" - the States conduct impermissibly chills commerce in arms and forces those who lawfully exercise their rights to subsidize the police function at hugely inflated cost given the overtime SWAT teams routinely dispatched to confiscate weapons based on a database that is at least 50% inaccurate. "oh and by the way, since this Circuit likes to say intermediate scrutiny while using rational basis we do not agree intermediate scrutiny is appropriate".Can we also remind Courts that the first duty of government is to be the guarantor of our liberty? And that they have yet to establish ANY nexus between the behavior of the the law abiding and the crime they claim they want to address?

Rant over.

She got better in my unlearned opinion

lowimpactuser
04-20-2017, 3:35 PM
Argument sounded damn sound and sexy, even to these jaded ears.

But our favorite chief judge is on the panel, and the other judge took notes and never looked up or even looked at our advocate.

California, much like samurai like Musashi advised, won the battle before it even began.

Citizen One
04-20-2017, 5:21 PM
https://youtu.be/QI4y_Dk9NBE?t=15m35s

Judge: You're saying because it's a commercial sale (..) can it be a commercial sale if it applies to private transfers? Because here this all applies to private transfers as well as...

Deputy AG: It applies to any kind of transfer. And (...) taking that view, er, looking at that exception, if you called that "not a commercial sale" that is an exception that might swallow the rule.

I think commercial, meaning like, "in commerce", would be (..) an acceptable way to look at it. It's a transfer, whether it's be between a retailer and a customer, or two private parties, it's at least akin to a commercial sale.

Absolutely. Freaking. NOT. Not anymore. Not with the passing of Assembly Bill 1511.

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB1511

AB1511 explicitly prohibits the lending of firearms to non-blood relations. Now, to even temporarily loan a firearm to a friend at the range, you must exchange the firearm at a dealer using a full DROS, FSC, paying said fees, etc. This activity is not commercial in the slightest. In fact, "lending to a friend" is as far away from "commercial" as you can get!

The State's argument is less than a farce. Mr. Anthony Hockel is audibly aware of the hypocrisy of the position he is charged with defending -- even if it is his sworn duty and job as Consul to do so. California's anti-gun politicians have passed so many contradictory and disingenuous laws so rapidly in their blind moral fervor, that their previously threadbare moral justification and legal defensibility for doing so has been blatantly shot. They don't get to "have their cake, and eat it too". Either they attempt to frame the DROS as covering a commercial transaction, or they need to reframe firearm lending laws. They do not get to do both. Doing both, as they have, is plainly discriminatory, logically contradictory, and demonstrates "safety" was not their concern when drafting the legislation: disenfranchisement of a minority population of their constitutional rights was. I suggest reading up on "Jim Crow" laws for reference; they are a cautionary tale, not a "how to" guide.

https://en.wikipedia.org/wiki/Disenfranchisement_after_the_Reconstruction_Era

Ultimately, _____ Democrats added to previous efforts and achieved widespread disenfranchisement by law: from XX90 to XXX8, ____ state legislatures passed new constitutions, constitutional amendments, and laws that made _____ registration and _____ more difficult, especially when administered by _____ staff in a discriminatory way. They succeeded in disenfranchising most of the _____ citizens, as well as many _____, and ___ ______ dropped dramatically in each state.

Fill in the blanks. If there is one thing I absolutely cannot stand, it is blatant hypocrisy.

taperxz
04-20-2017, 6:29 PM
Excellent arguments by both sides. Toss up!

Win goes to the state cause it's the 9th circuit. :(