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View Full Version : McKay v. Hutchens CCW - The judges are...


ToldYouSo
09-29-2013, 5:35 PM
The names of the three judges who will hear the CCW appeal out of Orange County brought by NRA lawyer Chuck Michel was published on Friday. The oral arguments before the 9th Circuit Court of Appeals is on October 7th.

The three judges are: Pregerson, Wardlaw and Tallman.

Pregerson was appointed by Carter and will be one week shy of his 90th birthday when he hears the oral arguments in McKay. He is both a liberal and of the generation which believed only criminals carry concealed weapons so don't count on his vote.

Wardlaw is a 59 year old appointed by Clinton. She was a judge on two unpublished cases which upheld 18 U.S.C. 922(g)(1) (Felon in possession). There isn't enough in those opinions to predict which way she will lean. She did work to get anti-gun mayor Richard Riordan elected and so I suspect that the Second Amendment is not high on her list.

Tallman is a 60 year old Clinton appointee. He wrote a concurring opinion in the final Nordyke appeal in which he criticized the majority for not explaining the standard of scrutiny and saying he prefers the earlier "substantial burden" framework from Nordyke.

Here is a link to Chuck Michel's docket for McKay v. Hutchens -> http://michellawyers.com/mckay-v-sheriff-hutchens/

Paladin
09-29-2013, 6:54 PM
The names of the three judges who will hear the CCW appeal out of Orange County brought by NRA lawyer Chuck Michel was published on Friday. The oral arguments before the 9th Circuit Court of Appeals is on October 7th.Interesting. IIRC, Jackson v. SF, the NRA case where scrutiny is at issue, will be heard at 9:00am that day. Coincidence? :TFH:

huntercf
09-29-2013, 7:14 PM
It's the 9th, don't hold your breath.

ToldYouSo
09-29-2013, 7:45 PM
Interesting. IIRC, Jackson v. SF, the NRA case where scrutiny is key, will be heard at 9:00am that day. Coincidence? :TFH:

Jackson v. San Francisco was dealt a better hand. The judges are Nelson, M. Smith and Ikuta.

Oral arguments will be heard in San Francisco. There is a notice of appearance by Clements but it is unclear who will be present in oral arguments.

http://michellawyers.com/guncasetracker/jacksonvsanfran/

wolfwood
09-29-2013, 8:44 PM
I'm really happy for Sean. He is arguing this. I am assuming that the rest of Michel's team are going to San Fran to support Clement.

sfpcservice
09-29-2013, 9:23 PM
I love comments like this. If we assume that your opinion is representative for gun people, and your statement can be widely distributed, then gun people just lost about half the vote.

I deleted my comments. I will abstain until after the vote is in. Now delete your quote so you aren't the one to loose us the votes.

curtisfong
09-29-2013, 11:01 PM
Delete my quote? You got to be kidding. I made a printout of this thread to a .pdf file, which I will post on the democratic underground sometime.


You're scum. Despicable. Mindless partisan, just like everybody else. Your hypocrisy disgusts me.

curtisfong
09-29-2013, 11:29 PM
I'm no partisan. There is no progress to make with me. I detest the idiotic game. I was going to give you the benefit of the doubt, because it seemed to me you weren't a partisan either.

If there was a actual progress you could make with me to make me less partisan (there isn't), you would now have a lot of ground to make up, credibility wise.

Your "joke" was in poor taste, and accomplished nothing, since you already made your point well before your misguided DU crack.

M. D. Van Norman
09-29-2013, 11:44 PM
Well, in any case, I heard that these guys are the real experts. :p

rt66paul
09-30-2013, 9:37 AM
Christians are taught to hate the sin and embrace the sinner. While I detest Feinstein and Boxer's outlook on the 2nd amendment, I bear neither of them any animosity. I hope the day will come soon that I can wish both of them a long retirement from public service.

curtisfong
09-30-2013, 12:07 PM
It's not about being partisan. It's about the largest problems that face guns: gun people and gun organizations. Sfpcservice's remark above (now deleted, a step in the right direction) is part of the problem, not part of the solution. I'm pointing out that as long as gun people go around hating women in positions of power, it doesn't really matter whether they are democrats, republicans, or purple martians.

I agree, but idiots aren't endemic to any particular demographic; they can't be controlled, and their actions can always be cherry picked as representing the entire cohort.

Your singling bad actors out as an issue that is unique to gun rights advocates is doing just that.

Yes, calling out bad behavior is fine (and admirable, if done correctly), but your own behavior isn't really any better if you misrepresent reality just to prove a point.

And, in any case, for every one you successfully silence, 10 more will pop up to make outrageous statements that make everybody else look bad.

stix213
09-30-2013, 12:24 PM
Back on topic.... This is the CCW case I've heard the least about. Everything has been all about the Yolo and SD cases (Richards/Peruda). How is this case different? With both of those cases awaiting judgement by the 9th, which could happen anywhere from many months to just days, why are we pushing another before the results are known for these two?

curtisfong
09-30-2013, 8:25 PM
Please keep thinking about what is going wrong with gun rights, how the existing gun culture interacts with society at large, and how that causes those things to go wrong.

You're missing my point. EVERY single activist cohort is like this. Almost without exception. I agree that it is a problem. I agree that activists should know their audience. I agree that when they do not, they lose people who by all accounts should support their cause

I agree that if we expect to regain any gun rights whatsoever in CA, the message needs to reach a wider audience.

What I disagree with is your characterization that this cohort is any different than any other activist cohort in its ability to alienate.

I can't think of a single activist organization that doesn't alienate when they shouldn't by either

1) intellectually dishonest opponents cherry picking the "nutjobs" and pretending they represent the movement as a whole

2) misguided PR from leadership

The first you simply cannot fix. Ever. But you shouldn't exacerbate the problem by being the scumbag doing the cherry picking.

The second .. yes. Fix that.

fizux
10-01-2013, 1:36 AM
.... another thread degenerates into the CGN internecine war. SSDD.

Crom
10-01-2013, 4:15 PM
This thread should be moderated and the trash talk deleted and infractions /bans issued. If I had the power, I'd delete every off topic post.

Good luck to Chuck's team with this case.

curtisfong
10-01-2013, 7:45 PM
Go figure, I agree with chainsaw on all accounts :)

Paladin
10-07-2013, 8:29 AM
Interesting. IIRC, Jackson v. SF, the NRA case where scrutiny is at issue, will be heard at 9:00am that day. Coincidence? :TFH:

Today's the day for both McKay and Jackson!

Anyone attending?

Will audio be available?

flyonwall
10-07-2013, 10:20 AM
This case is a denial of a preliminary injunction. It is a poor attempt to leap frog ahead when in reality it creates more delay.

sholling
10-07-2013, 10:22 AM
This thread should be moderated and the trash talk deleted and infractions /bans issued. If I had the power, I'd delete every off topic post.
This is how Progressives work at destroying unity on forums they detest. They steer the discussion off topic with and try to demonize people who's opinions they disagree with, and push the idea that surrender of freedoms including freedom of speech and the freedom to have non PC thoughts to the Progressive (leftist/fascist) agenda will somehow save our gun rights. I'm no fan of sexist remarks (I think they're beyond stupid) but this is typical Alinskyism and should be treated as such. No gun rights advocate would ever try to publically embarrass a gun rights site or its members or try to convince us that our oppression is our fault (blame the victims) - only an anti pretending to be pro rights would do such a thing. Now let's ignore the agent provocateur and get back on track.

flyonwall
10-07-2013, 11:31 AM
Is there a feed for Jackson?
McKay is at least an hour from starting.

Motorola
10-07-2013, 12:02 PM
Is there a feed for Jackson?
McKay is at least an hour from starting.

Don't think so...probably be posted on the CA9 site tomorrow.

flyonwall
10-07-2013, 12:05 PM
Usually people attend and post comments. I am sitting in McKay and will post some notes if perfusion doesn't spontaneously combust before case is called. I thought more folks were involved and attended these things.

Motorola
10-07-2013, 12:42 PM
I was hoping to attend, however, the uncertainty of exactly WHEN the case would be heard kept me away.

Any early notes you can post, would be appreciated!

flyonwall
10-07-2013, 1:59 PM
Brady argues for McKay: 2a challenge to policy to deny all a license unless can prove subjective good reason. Does it extend outside home- yes. It is a complete ban. Armed and ready is not a lock box. Other sheriffs use self defense as good cause . 41 states allow. Risk of remand in peruta because of change in law. 2a is a fundamental right to self defense. A factor can't be do you have a good enough reason. Did a great job!!!!
Pergerson: but you can buy a gun and use it home. Threshold issue is that if there is a right then it can't be controlled by a sheriffs discretion.
Wardlaw: ca has many exceptions that allow carry. Not a complete ban. Speech limitations are allowed. Speech is less dangerous than a gun and there is evidence that guns are dangerous. Generalized fear is fine but specifics would be okay. Statute says good cause so this is just her way. Should we hold for peruta? If have a right beyond home are there limitations? We are at navy yard?
Tallman: because open carry is prohibited you can't have a weapon without a permit right? Personal protection doesn't mean anything- someone needs discretion. If there is a right in home it extends outside the home? Self defense is enough?
Sheriff: main issue is ct abused discretion in denying pi- not a 2a case- sheriff just following law. Intermediate scrutiny cause not core. Sheriff is only defending her policy not addressing open carry. Need more than personal protection.
Per: at end: so anyone who feels unsafe and wants a gun ought to be able to do so and the sheriff takes position that more guns more crime. Sheriff decides and not a problem in small counties but here to promote law enforcement she will limit entitlement.
Ward: if there is a right what level and how does sheriff meet it? Ca law has ban on open carry which creates the problem so aren't you attacking the scheme and shouldn't they be in this case?
Tallman: more than that because court said no right so if we find a right there is an abuse of discretion. Might be a right because ca says only ccw. Having a hard time accepting a policy that doesn't allow self defense. Thinks self defense is enough and sheriff isn't recognizing the right. There is a core right to self defense!!! We are reading it much differently. "Zenith in home means still core outside home". "How is the sheriff respecting the 2a of she doesn't recognize self defense". Self defense is enough!!!!!! Other states have exceptions, ca . does not. Why is this any different from posner in Moore. Zimring tells us nothing about ccw!!!!!!!! More guns might make criminals think twice before pulling a gun in a theater because ccw might shoot back.

flyonwall
10-07-2013, 2:04 PM
New question from Wardlaw: how handle procedurally because it is a questionable issue and pi requires strong likelihood of success.
Brady: ezell says so what if new law, you can't punt back.
Wardlaw: but 9th is about to definitively decide this issue so why not wait for that. Should wait and see.
Brady: no facts at issue, pure question of law so nothing for trial court to do. Sky is falling is completely rebutted.

flyonwall
10-07-2013, 2:16 PM
Also Wardlaw said 9th would be answering these questions very soon!

El Toro
10-07-2013, 2:30 PM
Thanks for the highlights. Was the general tone of panel members favorable?

flyonwall
10-07-2013, 2:41 PM
Oddly, perguson wouldn't shut up all morning and only mumbled a few words. Tillman 100 percent with us. Wardlaw started out quite pro sheriff but then seemed to see the point Sean was making. I would say she is solid 50/50. No idea at all on pergusin.

Motorola
10-07-2013, 3:21 PM
Thanks for the play by play.

Look forward to hearing the audio tomorrow.:oji:

Foresight88
10-07-2013, 3:31 PM
Thanks guys for all the info. Dying to know what else transpired.

ToldYouSo
10-07-2013, 5:48 PM
Also Wardlaw said 9th would be answering these questions very soon!

It took how long in Peterson v. Martinez? Thirteen months? We've been waiting ten months for Richards and Peruta to be decided and Gura said in one of his briefs that decisions are typically issued in nine to twenty months here in the 9th Circuit Court of Appeals.

Of course if Woollard is granted cert then every CCW case gets stayed by the 9th until the Supreme Court decides.

flyonwall
10-07-2013, 5:52 PM
What is the basis for your belief that Woollard would stay the 9th?

ToldYouSo
10-07-2013, 6:13 PM
What is the basis for your belief that Woollard would stay the 9th?

Woollard presents the same issue. Whether the Second Amendment entitles one to a permit to carry a loaded handgun (openly or concealed in the case of Woollard) in public absent a "good and substantial reason" aka "good cause.

Richards, Peruta and McKay all argue that a desire to carry a handgun in public for self-defense is all that is required to satisfy California's "good cause" requirement to be issued a permit (absent prohibiting factors such as convicted felons).

flyonwall
10-07-2013, 6:20 PM
It doesn't work that way, a federal appeals court is the final jurisdiction and circuits have different law on the same issue. I don't think cert would cause a stay.

ToldYouSo
10-07-2013, 6:47 PM
It doesn't work that way, a federal appeals court is the final jurisdiction and circuits have different law on the same issue. I don't think cert would cause a stay.

We should know shortly. Woollard has been distributed for this Friday's SCOTUS conference. One thing is certain, if Woollard is denied, and we could know that as soon as the following Tuesday, then there won't be a stay based on Woollard.

Al Norris
10-07-2013, 7:49 PM
Perhaps the orals for McKay will show up tomorrow (they are not presently listed).

In the meantime, here are the orals for Jackson: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011334

ToldYouSo
10-07-2013, 8:07 PM
Perhaps the orals for McKay will show up tomorrow (they are not presently listed).

In the meantime, here are the orals for Jackson: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011334

Jackson v. San Francisco thread is now here -> http://www.calguns.net/calgunforum/showthread.php?t=834290

SFgiants105
10-07-2013, 8:58 PM
... I want to keep my guns and be able to use them. Given the way gun people are acting, that will not be possible for long. The fix is repairing the gun culture, before it self-destructs.


Your concern is a valid one, and I can assure you that many people here agree with you in that regard. However, I don't think that the problem you cite is confined to the realms of the pro-gun community, but rather is a problem on the internet in general; there are just as many outspoken and ill-informed anti-gun people writing stupid 5h!t on their forums, but they aren't the ones under scrutiny right now. Gun culture as a whole has been put under fierce scrutiny since Columbine, and increasingly so prior to every mass shooting thereafter, therefore the media can always find a way to turn nothing into something.

Read this article for example:

http://www.huffingtonpost.com/2013/07/01/adam-lanza-bullet-fetish-wikipedia_n_3528377.html

"I always prefer asking through proxy when I can avoid speaking to someone directly. I was just wondering if anyone knew because I have a fetish for .32 ACP," [Lanza] reportedly said, referring to a type of ammunition.

A terrifying glimpse into the mind of a psychopath :rolleyes:

In case you guys are wondering, the username on THR is Kaynbred (they aren't 100% if it actually is him); if you go through his posts, you won't notice anything "crazy." This shows how the media can turn nothing into news, and when you have morons like the guy who posted a video on youtube saying he was going to start killing people if the gubment took away his guns, it's easy to make us look bad when most of their audience doesn't crosscheck facts and analyze the facts objectively.

Al Norris
10-08-2013, 2:33 PM
The orals are now posted: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011343

John Galt
10-08-2013, 5:52 PM
I should have been a lawyer

ToldYouSo
10-08-2013, 7:23 PM
The orals are now posted: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011343

Thanks for posting the link.

Given that the NRA lawyer pretty much conceded that Peruta v. San Diego will be controlling unless it is remanded back to the district court, don't expect a decision until we have a decision in Peruta.

Alan Gura said in one of his briefs in Richards v. Prieto that the 9th CCA typically takes from 9 to 20 months to issue a decision.

Peruta & Richards just hit the 10 month marker. So maybe we will have a decision in them by the end of next Summer.

press1280
10-12-2013, 4:43 AM
Thanks for posting the link.

Given that the NRA lawyer pretty much conceded that Peruta v. San Diego will be controlling unless it is remanded back to the district court, don't expect a decision until we have a decision in Peruta.

Alan Gura said in one of his briefs in Richards v. Prieto that the 9th CCA typically takes from 9 to 20 months to issue a decision.

Peruta & Richards just hit the 10 month marker. So maybe we will have a decision in them by the end of next Summer.

This is assuming the judges were actively working on Peruta/Richards before, during, and right after orals. Remember Mehl v. Blanas (aka train wreck) would have been controlling if not dismissed by CA9.
IANAL so I don't know whether judges would actively work on an opinion when there's a controlling case ahead of it. If not, then Peruta/Richards could be a LONG ways off.

SonofWWIIDI
10-12-2013, 5:04 AM
Christians are taught to hate the sin and embrace the sinner. While I detest Feinstein and Boxer's outlook on the 2nd amendment, I bear neither of them any animosity. I hope the day will come soon that I can wish both of them a long retirement from public service.

Please let that day be very, very soon!

ToldYouSo
10-12-2013, 7:19 PM
This is assuming the judges were actively working on Peruta/Richards before, during, and right after orals. Remember Mehl v. Blanas (aka train wreck) would have been controlling if not dismissed by CA9.
IANAL so I don't know whether judges would actively work on an opinion when there's a controlling case ahead of it. If not, then Peruta/Richards could be a LONG ways off.

If the judges in Peruta/Richards followed the rules of the Court then they voted on Peruta/Richards on the same day after oral arguments and after taking the case under submission. According to the rules of the court, the lead judge, after the vote, assigned it to one of the judges for a decision on the same day as well.

Given that Mehl v. Blanas was kicked, Richards was the first case taken under submission and it will be controlling. Richards was also the only case which specifically challenged the constitutionality of a state law. Peruta explicitly disavowed any challenge to any law.

Given the history of the 9th in Nordyke v. King, nobody should be surprised if the 9th kicks Richards back to the district court to reconsider the case in light of the subsequent ban on the unloaded Open Carry of handguns.

Peruta is likely to be dismissed entirely, much like Mehl, in an unpublished decision.

Of course if Woollard is granted cert on Tuesday, the 9th will probably stay all of the pending CCW cases. I don't think Woollard will be granted cert, Prof Volokh gives it a 25% chance.

The problem with Richards, aside from failing to argue an as-applied challenge in district court, is he only challenges the "good cause" and "good moral character" sections of the law. He failed to challenge the residency and population restrictions of the law pertaining to the Open Carry of handguns so Richards has, in effect, made his case purely a concealed carry challenge and limited it to Yolo County.

Richards argued for concealed carry with a permit or no carry, no carry is what he is likely to get.