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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #121  
Old 12-02-2012, 11:41 PM
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Originally Posted by Librarian View Post
That line of conversation is off topic for any thread outside of OT. Let us please restrain our Imps of the Perverse.
Is there some sort of unofficial rule that I'm not aware of, that we're not supposed to question people's anonymity, especially when anonymous one asks for a bet?
  #122  
Old 12-02-2012, 11:56 PM
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Originally Posted by Tincon View Post
I believe you may be presenting a False Continuum. While there may surely be some exceptions to the rule here, it is absurd to ascribe them any great significance absent some evidence that oral arguments will carry an unusual weight in these cases.

As I said before, absent some tactical reason for not giving notice (as has been alleged to exist), it is my opinion that it should have been given. It is not however, a significant factor in either case.

Interestingly, the worst case scenario seems to have been achieved in the Richards case, where notice was given (possibly eliminating any theoretical tactical advantage), but the notice was materially deficient (possibly precluding compliance with rule 5.1).

Look all I know is this directly impacts my life. I was born and raised in San Diego but that's not really the point. My Uncles and cousins have been paying N.R.A. dues for most there lives. So I figure when you guys are taking money from my kin, your going to use it right. I'm sure you can argue about this all day. I will tell you this though. This stuff directly impacts my life. I had to drop several of my grappling clients so I could sit in front of a computer losing money largely in part because of this issue past few days. That's money out of my pocket. In ain't right that your taking money admittedly indirectly from my family, agree to do a job, then fail to do part of it. That wastes my time and more importantly that wastes Paul Clements time. Are you going to tell me you hired got Paul Clement up there talking for no reason? Why didn't you waive your oral argument like Mr. Bircht did then? Just retain Paul Clement and apply for cert if your only reason for grabbing hm is to help get a writ through if need be.Come on man. Maybe a regular guy isn't going to sway a court but a guy like Paul Clement. Damn right he can. Now instead of 20 minutes of some of the best oratory in the world being applied to con law he is going to spend half that time talking about some letter that should of been sent years ago. And don't tell me its some tactical deal. What happened is you guys amended you complaint and forgot the case originally was about striking down the law.


Look I am not trying to get into this fight between your groups. Other than Adam Richards who's my bro from college I've never broken bread with any of you. On the other hand, it ain't right for anyone to criticize Neuharth about this. This hasn't been his case for a long time now. I don't know the history as well as most of you guys but for all we know he would have eventually given the state notice. And it certainly ain't right to judge Mr. Peruta. He is not running the show. As for him filing a lawsuit. That is his right as a American. Every man has a right to file his grievances in a court of law. That goes all the way back to trial by combat. No matter how rich or poor has a right to try his hand. At least he is out there trying and my understanding is he was even originally doing the work. He forced a case to the Ninth Circuit that may win. If the 2nd Circuit logic is used then Richards will lose. Peruta may still win. Neumath did that because he had the guts to get out there are fight. He forced the point and made the N.R.A. get involved. The rest is on them.

Look if I am misinterpreting that logo and you just posting on the internet I am sorry. Sounds like everyone involved has made mistakes. Point is you should own up to them instead of trying to use some fancy talk to spin it. I am not working in any national firm and I am sure you could run circles around me in a debate. But come on don't blow smoke.

Last edited by wolfwood; 12-03-2012 at 9:19 AM..
  #123  
Old 12-02-2012, 11:56 PM
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Originally Posted by Gray Peterson View Post
Is there some sort of unofficial rule that I'm not aware of, that we're not supposed to question people's anonymity, especially when anonymous one asks for a bet?
There was an earlier event, to which Fabio alluded, resulting in a group of short bans for discussing any member's choice to maintain a 'handle' rather than overt identity. (Can't find the thread quickly - it was here in 2A.)

Either a member's contributions stand on their own, or they do not; such evaluation is a privilege of each reader.

There was also, IIRC, a short discussion of not being 'an occasion of sin' ...
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  #124  
Old 12-02-2012, 11:59 PM
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I have observed it come up on a few occasions, and the law was laid down by Librarian that those who wish to comment anonymously here can do so without being badgered over said anonymity. They may be badgered on other subjects, however, as long as other rules of engagement are observed.

I don't know about a forum rule, but I wager there may be something in the law about online gambling.

ETA; Librarian beat me to it.
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  #125  
Old 12-03-2012, 12:02 AM
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Originally Posted by Librarian View Post
There was an earlier event, to which Fabio alluded, resulting in a group of short bans for discussing any member's choice to maintain a 'handle' rather than overt identity. (Can't find the thread quickly - it was here in 2A.)

Either a member's contributions stand on their own, or they do not; such evaluation is a privilege of each reader.

There was also, IIRC, a short discussion of not being 'an occasion of sin' ...
So sayeth the moderator, so say we all.
  #126  
Old 12-03-2012, 12:08 AM
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Look all I know is this directly impacts my life. I was born and raised in San Diego but that's not really the point. My Uncles and cousins have been paying N.R.A. dues for most there lives. So I figure when you guys are taking money from my kin, your going to use it right. Look brother I looked at your profile and sounds like your doing alright for yourself up there in Long
Beach. I'm sure you can argue about this all day. I will tell you this though. This stuff directly impacts my life. I had to drop several of my grappling clients so I could sit in front of a computer losing money largely in part because of this issue past few days. That's money out of my pocket. In ain't right that your taking money admittedly indirectly from my family, agree to do a job, then fail to do part of it. That wastes my time and more importantly that wastes Paul Clements time. Are you going to tell me you hired got Paul Clement up there talking for no reason? Why didn't you waive your oral argument like Mr. Bircht did then? Just retain Paul Clement and apply for cert if your only reason for grabbing hm is to help get a writ through if need be.Come on man. Maybe a regular guy isn't going to sway a court but a guy like Paul Clement. Damn right he can. Now instead of 20 minutes of some of the best oratory in the world being applied to con law he is going to spend half that time talking about some letter that should of been sent years ago. And don't tell me its some tactical deal. What happened is you guys amended you complaint and forgot the case originally was about striking down the law.
"You guys"? Clue all of us in here.

Quote:
Look I am not trying to get into this fight between your groups. Other than Adam Richards who's my bro from college I've never broken bread with any of you. On the other hand, it ain't right for anyone to criticize Neuharth about this. This hasn't been his case for a long time now. I don't know the history as well as most of you guys but for all we know he would have eventually given the state notice. And it certainly ain't right to judge Mr. Peruta. He is not running the show. Look if I am misinterpreting that logo and you just posting on the internet I am sorry. Sounds like everyone involved has made mistakes. Point is you should own up to them instead of trying to use some fancy talk to spin it.
I disagree. Peruta was directly running the show for the first 4 or 5 months of the litigation, and refused to wait up for the Sykes litigation to finish up. He just had to file a lawsuit™.

Neuharth, not letting him off the hook, even though it appears he never did federal civil rights litigation ever in this particular context.

Last edited by Gray Peterson; 12-03-2012 at 12:10 AM..
  #127  
Old 12-03-2012, 12:27 AM
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I might be wrong but I am under the impression that the poster works for a firm that represents the N.R.A. Most my family who live in Indiana are N.R.A. members. So indirectly, my family is paying for this. So by you guys I mean the N.R.A. and their counsel. They are extremely intelligent attorneys with large resources and training. Those resources and training are in large part provided by the American people via donations. They should live up to that trust.

Gray Look I am not exactly in a position to criticize a San Diego based attorney for filing a 1983 lawsuit challenging a state's firearms regulations despite having no experience and I probably should not have started posting this stuff. Its just when I was growing up I'd go to Huntington Indiana every summer and spend it at my grandparents house. My uncle would take me shooting. Back then the N.R.A. was America's Superman making sure we could still run through the woods with our rifles. Its disappointing to see my vision from childhood dispelled.

If what was essentially a pro se litigant successfully litigated this issue for half a year and forced a suit which now gives California a second chance if the Court follows the 2nd Circuit and says prior restraint is not appropriate when there is not unbridled discretion good on him. I'll buy him a beer if I see him around town.

Last edited by wolfwood; 12-03-2012 at 12:59 AM..
  #128  
Old 12-03-2012, 3:16 AM
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Originally Posted by OleCuss View Post
Not sure I understand this one.

I'm pretty sure that all three will be heard - the court was not canceling oral arguments, they were telling the litigants to be prepared to argue the issue of notification.

So I'm personally very certain that both Peruta and Richards will be heard - the disposition after the orals is what I have questions about.

But it could be that I'm misunderstanding - wouldn't be the first time.
I'm just saaying if for some reason the court did buy the, "CA Doesn't know - the case must go!" stuff that has been speculated that there would still be a ruling, because the State opted out of the Hawaii case. Although in our a case, a split with 7th circuit for standing could ensue.
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Last edited by Funtimes; 12-03-2012 at 3:30 AM..
  #129  
Old 12-03-2012, 9:04 AM
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Mike,

It's always been amusing to watch you be so vocal and yet so, so irrelevant...

How many LTCs has Sheriff Jay issued in San Diego County so far?

-Brandon

Quote:
Originally Posted by mike_schwartz@mail.com View Post
Guys, this is all some personal agenda crap. This is some kind of smear campaign. The evidence is that the first 4 posts on this thread were from Gene, Brandon, and Gray, all three of them are hanging in there to do nothing more than trash a couple people (who you'd think would be considered all on the same progun team), they aren't giving all the facts, this Fabio guy has a whole different story...

I don't know what is going on here, but it is all someone's agenda. Don't let them make you part of their agenda. I only know what is on this thread, but I can smell the BS right through the computer screen. Disregard this entire thread and move on. We could use far fewer jr-wanna-be-lawyers and Hoffman sycophants and far more activists.

Back away from the calguns and go teach some people how to shoot and/or volunteer for a pro-gun politician or candidate. The rest of this is all a waste of time.
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  #130  
Old 12-03-2012, 9:16 AM
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How about this. I know one case will absolutely be heard, because we have nothing to do with this State notification issue lol.
Thank you!
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  #131  
Old 12-03-2012, 9:21 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Ask a mod to hold the money, I'll send a money order. Your "horror show" isn't going to play out I'm afraid lol.
Careful Gray he could be a Nigerian!
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  #132  
Old 12-03-2012, 9:38 AM
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Originally Posted by mike_schwartz@mail.com View Post
Guys, this is all some personal agenda crap. This is some kind of smear campaign. The evidence is that the first 4 posts on this thread were from Gene, Brandon, and Gray, all three of them are hanging in there to do nothing more than trash a couple people (who you'd think would be considered all on the same progun team), they aren't giving all the facts, this Fabio guy has a whole different story...

I don't know what is going on here, but it is all someone's agenda. Don't let them make you part of their agenda. I only know what is on this thread, but I can smell the BS right through the computer screen. Disregard this entire thread and move on. We could use far fewer jr-wanna-be-lawyers and Hoffman sycophants and far more activists.

Back away from the calguns and go teach some people how to shoot and/or volunteer for a pro-gun politician or candidate. The rest of this is all a waste of time.
Nothing to see here; move along.
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  #133  
Old 12-03-2012, 9:46 AM
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After reading through this thread, my confidence in our ability to win any of the carry cases is at an all-time low.
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  #134  
Old 12-03-2012, 9:58 AM
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Originally Posted by wildhawker View Post
Mike,

It's always been amusing to watch you be so vocal and yet so, so irrelevant...

How many LTCs has Sheriff Jay issued in San Diego County so far?

-Brandon
Sheriff Jay, the guy that wanted to create constructive possession for AWs?

Hah.
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  #135  
Old 12-03-2012, 10:09 AM
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Originally Posted by Gray Peterson View Post
"You guys"? Clue all of us in here.



I disagree. Peruta was directly running the show for the first 4 or 5 months of the litigation, and refused to wait up for the Sykes litigation to finish up. He just had to file a lawsuit™.

Neuharth, not letting him off the hook, even though it appears he never did federal civil rights litigation ever in this particular context.
When he says “You Guys” he means all who are bickering and quarling.
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  #136  
Old 12-03-2012, 10:59 AM
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I am not an attorney, and I certainly don't know anything about federal civil procedure rules.

That being said, AFAIK there is one man, and only one man who has successfully fought two major national 2A cases recently. Alan Gura. There haven't been many others that have had the kind of success that he has had in this arena that I am aware of. I think we all need to pay attention to that, and follow his pattern, that is if our goal is actually to win these cases and not just profit from them.

I was present at the PERUTA orals in San Diego in front of judge Gonzales, and then went to dinner with Ed Peruta and a group of other people who supported him. I supported them at the time, but this was a UOC group, and we all know how that effort turned out...

As an aside, IIRC there were also issues about Peruta not being the ideal plaintiff for this type of case either.

My point in saying all of this is that there are people who have shown that they know the right way to handle this issue, and if we are ultimately going to win, we need to sit back and let them take the lead. If they say a particular case shouldn't be filed, then it shouldn't be filed. If they say a particular argument shouldn't be made, then it shouldn't be made. Otherwise we are simply micturating in the wind, and being counterproductive to our own cause. It is obvious that some of us, while perhaps having the best intentions, have made things worse, not better.
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  #137  
Old 12-03-2012, 12:24 PM
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Originally Posted by bulgron View Post
After reading through this thread, my confidence in our ability to win any of the carry cases is at an all-time low.
It's a good thing, then, that your confidence and actual outcomes are mutually exclusive.

-Brandon
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  #138  
Old 12-03-2012, 12:45 PM
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Originally Posted by wildhawker View Post
It's a good thing, then, that your confidence and actual outcomes are mutually exclusive.

-Brandon
Let's hope. But that remains to be seen. With the exception of Woolard (which is now on appeal) what are the actual good outcomes of carry cases to which you refer?

I am optimistic that we will prevail when cert is finally granted, because to believe otherwise would be to accept the unthinkable. But until then, and correct me if I am wrong, there are no positive outcomes yet on federal carry cases.
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Last edited by Maestro Pistolero; 12-03-2012 at 12:54 PM..
  #139  
Old 12-03-2012, 12:55 PM
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Here's a thought, why don't we focus on the topic and leave the digs at each other and snide remarks at the door.

That way I don't have to delete a thread that has serious value and potential.
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  #140  
Old 12-03-2012, 2:45 PM
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Quote:
Originally Posted by Kestryll View Post
Here's a thought, why don't we focus on the topic and leave the digs at each other and snide remarks at the door.

That way I don't have to delete a thread that has serious value and potential.
Amen. I'm not alone in wishing for a laymen's explanation of what is happening and the possible outcomes.

The pissing contests get old after awhile.
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  #141  
Old 12-03-2012, 3:25 PM
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After reading the back and forth I'll try my explanation as someone who is a non-lawyer:

Some fairly to very legally sophisticated individuals believe there are problems with some of the paperwork which they believe (or don't believe) should have been filed for both Peruta and for Richards.

The paperwork was not filed in the case of Peruta but at least some legal experts don't think it needed to be.

Relevant paperwork was filed in the case of Richards but it is not clear to me that it was done right. The district court did not do what it should have done in regard to giving proper notice to the state - but that is not likely to affect the case.

So at this time the 9th Circuit has more or less told the lawyers for both Peruta and Richards to be prepared to address/argue whether or not notice of the lawsuits should have been properly served to the state, whether or not the notice was properly given (assuming it should have been given), and (assuming that proper notice was not given) whether this would require that the case be sent back to the district court to allow for proper notice and whatever other legal maneuvering must occur.

Some of the legally sophisticated think that neither Peruta nor Richards will be remanded and that both will have rulings from the 9th Circuit.

What does it mean for the cause of liberty? In the long-run not likely very much.

It does mean that there will be an issue which will be argued in court upon which there may not have been adequate written briefings - and that will be (I take it) relatively unusual.

But assuming the 9th Circuit does not remand to the District for further proceedings at the lower level - then this will have been much kerfuffle on our part over not much of anything.

Without the Remand I think one should expect the 9th Circuit to go ahead and rule against the cause of liberty sooner rather than later. But there is at least one judge on the hearing panel who is considered a really straight shooter even when he doesn't like the law - and that could help us a lot.

Whatever the outcome of the current proceedings at the 9th Circuit, I expect consideration to be given to asking for an en banc hearing and then an appeal to SCOTUS.

I hope our more legally sophisticated will fix the likely errors in the above.
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  #142  
Old 12-03-2012, 3:27 PM
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Quote:
Originally Posted by wazdat View Post
Amen. I'm not alone in wishing for a laymen's explanation of what is happening and the possible outcomes.

The pissing contests get old after awhile.
There is a rule that you have to file with the Court a form that goes to the State when you are trying to overturn a State law by suing a City or anything else that is not the State or part of the State government. The state has 60 days to decide whether it wants to become part of the lawsuit

The Peruta case originally was trying to overturn California's CCW law. The original attorney never filled out the form.
Once the NRA's attorney's got involved they changed the case to say the way San Diego was interpreting the law was wrong. However since the lawsuit originally about overturning the law they still had to fill out the form.

The most likely outcome is the guy arguing the case is going to have to waste a bunch of time telling the court why not sending the form is not important. However, there is a chance that the case will be sent all the way back to the original court because of this form.

In the Richards case they did send the form. However, the lower court did not send the form to the State. The rules say it does not matter who messed up that form has to be sent and it is on the people suing to double check that is was received by the state. So in Richards, they are going to have to spend time arguing why this does not matter. However, there is a really small chance that is might have to go back to the original court to.

This is the form. http://ia600408.us.archive.org/4/ite...191626.3.0.pdf

Last edited by wolfwood; 12-03-2012 at 3:30 PM..
  #143  
Old 12-03-2012, 3:56 PM
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My "short" attempt to provide a Layman's explanation of what is going on.

Federal Statute 42 U.S.C. 1983 which allows citizens to sue for violations of their civil rights has a provision (incorporated into Fed. Rule of Civil Procedure 5) requiring that if a plaintiff's lawsuit challenges a federal or state law as unconstitutional, the plaintiff/court are required to notify the Attorney General (if challenging a Federal law) or the relevant State AG (if challenging a state law) if the lawsuit does not name the state itself (or a state officer) as a defendant.

This makes some sense because if you are challenging the constitutionality of a law with either national or state application, the Court wants to make sure that a National or State level entity defend it.

So, in Peruta, the lawsuit named the Sheriff/county as a defendant. However, the Sheriff is not a State officer, only a county officer.
If the lawsuit challenges the constitutionality of California's Concealed Carry Licensing law, the rule is intended to allow the State AG a chance to take over the case and defend the state law, rather than having a mere County Officer defend the constitutionality of the law.

As it turns out, the Peruta plaintiff(s)/attorneys never notified the State AG and it appears that the Court itself failed to notify the State AG.

It may be arguable whether the Peruta claim challenges the Constitutionality of the California Concealed Carry licensing law. IF I recall correctly, the claim is that the San Diego county Sheriff's office interpretation or implementation of "may issue" and specifically of "good cause" violates Peruta's 2A rights.

Whether this distinction avoids the requirement for notification remains to be seen.

Likewise, I don’t know whether the Peruta attorneys strategically omitted the notice or did so out of ignorance of the requirement. (one could argue the Peruta claim does not challenge the constitutionality of the law and that they didn’t want to litigate against the state and would rather litigate against the county and thus purposefully failed to notify the state AG)

In Richards (the case Mr. Gura is litigating), the attorney’s did notify the State AG’s office that they were challenging the constitutionality of California’s Concealed Carry Licensing law (on a number of different grounds). However, while unclear, it seems that the Federal Dist. Court itself failed to notify the State AG.

Now, nearly on the eve of oral arguments in the three cases (scheduled for Friday Dec. 6, 2012), the Court of Appeals has advised the attorneys in the Richards (Gura) and Peruta cases to be prepared to discuss the import, if any, of the fact that the State of California (via the state Attorney General’s office) has failed to appear to defend the law.

Neither 1983 nor the Rules of Civil Procedure specify what the court should do in a situation where a claim clearly challenges the constitutionality of a state law but the plaintiff/court failed to notify the state AG. There have been some similar situations arise in the past and from those cases we THINK that the Court of Appeals has a fair amount of flexibility in choosing how to respond.

Peruta could argue and the Ct. of App. could decide that the lawsuit does NOT in fact challenge the constitutionality of the law and allow Peruta to proceed.

The Ct. of App. could disagree but decide that this harmless error and continue. It could stay a decision and ask the Cal. State AG to provide an opinion (does the AG want to get involved: if so, is the AG satisfied with getting involved at the Appeals stage or does the AG want it remanded to be retried at the Dist. Ct. level or something else). The Ct. of App. could decide the District Court lacked jurisdiction to try the case when it failed to notify the State AG and remand for retrial.

Unlike Peruta (where they appear to be arguing it is only the Sheriff’s application/interpretation that is being challenged) the Richard’s case explicitly challenges the constitutionality of the law. Accordingly, the Richard’s case clearly had to notify the State AG. Gura, the attorney for the Richards plaintiffs notified the State AG. However, this might not be technically sufficient if the Dist. Court itself failed to notify the State AG.

The Ct. of App. could decide that when the State AG receives actual notice (from the plaintiffs) it doesn’t matter if the technical requirement that the Dist. Ct. notify the State AG was not met. Alternatively, the Richards case could be in the same boat as Peruta if the Ct. of App. decides that only notice from the Dist. Ct. satisfies the requirement. I don't think this is likely but who knows.

In the initial post this was being presented as an example of why we should want experienced Civil Rights attorneys doing this kind of legal work. The Peruta attorney’s failed to notify the state AG (whether strategically or out of negligence I don’t know). This puts them at risk of having the Ct. of App. refuse to hear/decide their case delaying the ultimate resolution of that case, losing attorney’s fees etc.

I certainly agree with the sentiment and agree that Gura and SAF are better at this than Peruta et al. I do think that it would have been wiser for Peruta to wait. (even if Peruta ultimately wins and becomes the case the S. Ct. uses to announce “and bear” means carry that doesn’t mean it was the wisest or safest choice). However, while I do think that this is educational and may help illustrate the dangers of inexperienced counsel litigating high stakes important Civil Rights issues, I think that some people might have smelled a whiff of nyaa-nyaa boo-boo look at how those guys screwed up.

While I agree with the Richard/Gura camp as to the wisdom of the Peruta claim (or lack thereof) , I don’t think that means that the Richards/Gura camp is entirely devoid of ego. The back and forth between the Richards/Gura camp and the Peruta camp sometimes seems to devolve into a petty desire to get in the last word.

Is this good or bad for the overall fight for Carry Rights? Impossible to say.

IF the Ct. of Appeals finds that Peruta needed to but failed to provide notice to the state AG AND somehow “demotes” the Peruta case, I think that this is marginally better for the 2A because we then have what I think is a better case (Richards) and a better attorney (Gura) taking the clear lead in arguing for our carry rights.

If the Ct. of App. finds both Peruta AND Richards failed to provide a required notice AND then remands back to state court that would clearly delay our efforts to get a decision from the Ct. of Appeals. from the Ninth Cir. This should NOT affect the chances of our ultimately winning (or losing) the argument but does delay us by another 1-3 years. Of course with the composition of the S. Ct. in possible flux under an Obama presidency, it would be nice to get this before the S. Ct. sooner rather than later.

If the Ct. of App. allows both cases to go forward then we are in the same position we have been.

The S. Ct. could always take a 2A carry case from another circuit, but it would be nice to have a Ninth Cir. opinion, particularly if it found a 2A “carry” right and set up a conflict with other circuits.
  #144  
Old 12-03-2012, 7:04 PM
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If the Ct. of App. finds both Peruta AND Richards failed to provide a required notice AND then remands back to state court that would clearly delay our efforts to get a decision from the Ct. of Appeals. from the Ninth Cir. This should NOT affect the chances of our ultimately winning (or losing) the argument but does delay us by another 1-3 years. Of course with the composition of the S. Ct. in possible flux under an Obama presidency, it would be nice to get this before the S. Ct. sooner rather than later.
We can't afford a delay of 3 years (probability of losing at least one of the Heller 5 to death in that time frame: roughly 37%). I'd argue that we can't even afford a delay of 2 years (25% probability of losing a Heller 5 justice to death).
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  #145  
Old 12-03-2012, 7:35 PM
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The reality is we've had multiple attempts to explain what this all means and possible outcomes. The reason we've had people try to decipher what is going on? Because this thread isn't about a court case, guns, the Second Amendment, rights, lawyers, education, or leadership. It wasn't started to keep people informed on the issues. that wasn't the intent.

This thread is a few guys running around the gun world hitting other pro-gunners with their purse becuase they're all emotional. Oh, and their little sister Brandon who wants to be one of the cool-guys too so he jumps on with his creative little snide remarks.

This thread is not productive it is counterproductive. This thread doesn't help. It hinders. It doesn't lead. It divides. The guys I am talking about have done some fantastic things to benefit Second Amendment rights, but when they get petty and Jr. High cheerteam like this...it's bad for everyone and everything everyone here is working to accomplish.

So let them have their little hissy fit, but ignore it. It's a waste of time. Get involved some other way instead.
  #146  
Old 12-03-2012, 9:58 PM
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Here's a thought, why don't we focus on the topic and leave the digs at each other and snide remarks at the door.

That way I don't have to delete a thread that has serious value and potential.
With all due respect Kestryll, this thread was started with the full intent of it turning into a dig. It's not that difficult to read between the lines here. If you don't want that type of content on the site, perhaps the best course of action is to delete the thread.

With regards to those that suggest the paperwork issue might result in the case(s) being remanded, I suggest that you go back and read what the real (as opposed to amateur) attorneys have posted in this thread.
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  #147  
Old 12-03-2012, 10:05 PM
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I see nothing in Gene's first post that remotely resembles a dig. What folks posted after went down a now all too familiar road here at CG.
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  #148  
Old 12-03-2012, 10:26 PM
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Yeah, and post 57 was just an afterthought!
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Old 12-03-2012, 10:42 PM
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Originally Posted by Maestro Pistolero View Post
I see nothing in Gene's first post that remotely resembles a dig. What folks posted after went down a now all too familiar road here at CG.
Quote:
Thursday morning, the Ninth Circuit Court of Appeals issued an order in both Richards and Peruta stating the following:
Factual, not a dig

Quote:
Later that day, Alan Gura responded with this 28j Letter (attachment 1, 2 and 3.)
Factual, not a dig

Quote:
Some of you have heard some of us remind that one should not lightly take on the task of challenging laws under the Second Amendment. This development tends to be evidence of why we say that.

-Gene
A direct dig at Peruta and his counsel, and not thinly veiled, either.
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Old 12-03-2012, 10:46 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Yeah, and post 57 was just an afterthought!
Actually, FGG makes a pretty valid point here. Gene directly accused the NRA attorneys of malpractice on a public forum in post 57.

That is a pretty serious accusation.

Where do we draw the line as to what is appropriate in this forum?
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  #151  
Old 12-04-2012, 5:04 AM
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Originally Posted by spalterego View Post
My "short" attempt to provide a Layman's explanation of what is going on.


.......... right and set up a conflict with other circuits.


Thank you, now I understand.

This is looking like it has the potential to take decades to resolve. If people want to wait around California for the same gun rights as citizens across the border have, be prepared to wait a long time.
  #152  
Old 12-04-2012, 6:01 AM
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This is looking like it has the potential to take decades to resolve.
If it does, it won't be because of the notice in question. The OP is just stirring the pot.
  #153  
Old 12-04-2012, 6:13 AM
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Thank you, now I understand.

This is looking like it has the potential to take decades to resolve. If people want to wait around California for the same gun rights as citizens across the border have, be prepared to wait a long time.

Its not THAT bad. Even if both cases have to re-start, worst case is that they'll take as long to get back to the 9th as they took to get there in the first place. And even if that happens, there are others cases in the pipeline. Most notably, Wollard v Maryland, which is much better case in all respects.


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  #154  
Old 12-04-2012, 6:53 AM
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Originally Posted by Mulay El Raisuli View Post
Its not THAT bad. Even if both cases have to re-start, worst case is that they'll take as long to get back to the 9th as they took to get there in the first place. And even if that happens, there are others cases in the pipeline. Most notably, Wollard v Maryland, which is much better case in all respects.
The problem is that some case in California has to be ruled on one way or the other, else the law in California remains standing no matter what the Supreme Court has said for non-California cases.

Every law that violates the Constitution must be challenged and won against individually, and they all remain standing until such a successful challenge.

So the Supreme Court could rule that carry in public is a right in cases brought in every other state, and it wouldn't have any effect on us until a case challenging the California law was won.


Let me put it in unambiguous terms via an hypothetical example. Suppose the Supreme Court had ruled in favor of carry in public in a case brought in every other state in the land (hence, a total of 49 cases). Suppose, too, that a California case like Richards was subsequently brought and the 9th Circuit did what the 9th Circuit does (ignore Supreme Court precedence) and ruled against us. Further suppose that the Supreme Court's composition changed between the time the case was brought and the time it was appealed to the Supreme Court, and that the Supreme Court subsequently denies cert. What's the end result? Answer: that the California law infringing upon the right to keep and bear arms remains standing, and does so despite the Supreme Court having upheld the right to keep and bear arms in public in every other state.


The end result is that what happens in other carry cases is irrelevant in the face of a circuit court that refuses to heed Supreme Court jurisprudence. This is why time is of the essence specifically for Richards, for even if Baker wins at SCOTUS, it will have no effect on us until we win Richards.


The takeaway here is that the only thing that wins in other cases changes is the jurisprudence that the courts are supposed to follow. Such jurisprudence is of no use when the courts that are supposedly governed by it are insistent upon ignoring it in favor of their own whims, something the 9th Circuit is famous for doing.
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  #155  
Old 12-04-2012, 7:29 AM
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Quote:
Originally Posted by kcbrown View Post
The problem is that some case in California has to be ruled on one way or the other, else the law in California remains standing no matter what the Supreme Court has said for non-California cases.

Every law that violates the Constitution must be challenged and won against individually, and they all remain standing until such a successful challenge.

So the Supreme Court could rule that carry in public is a right in cases brought in every other state, and it wouldn't have any effect on us until a case challenging the California law was won.


Let me put it in unambiguous terms via an hypothetical example. Suppose the Supreme Court had ruled in favor of carry in public in a case brought in every other state in the land (hence, a total of 49 cases). Suppose, too, that a California case like Richards was subsequently brought and the 9th Circuit did what the 9th Circuit does (ignore Supreme Court precedence) and ruled against us. Further suppose that the Supreme Court's composition changed between the time the case was brought and the time it was appealed to the Supreme Court, and that the Supreme Court subsequently denies cert. What's the end result? Answer: that the California law infringing upon the right to keep and bear arms remains standing, and does so despite the Supreme Court having upheld the right to keep and bear arms in public in every other state.


The end result is that what happens in other carry cases is irrelevant in the face of a circuit court that refuses to heed Supreme Court jurisprudence. This is why time is of the essence specifically for Richards, for even if Baker wins at SCOTUS, it will have no effect on us until we win Richards.


The takeaway here is that the only thing that wins in other cases changes is the jurisprudence that the courts are supposed to follow. Such jurisprudence is of no use when the courts that are supposedly governed by it are insistent upon ignoring it in favor of their own whims, something the 9th Circuit is famous for doing.
You just might be overly pessimistic on this one.

Once we get a good "carry case" through SCOTUS we can start effectively using things like Preliminary Injunctions. IIRC, this will be a bit of a different animal than a regular civil rights suits like we've been forced to bring so far.

It'll still be frustrating and too slow, but I'm pretty sure that what SCOTUS does will have an effect here as well.
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  #156  
Old 12-04-2012, 7:47 AM
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Originally Posted by OleCuss View Post
You just might be overly pessimistic on this one.

Once we get a good "carry case" through SCOTUS we can start effectively using things like Preliminary Injunctions. IIRC, this will be a bit of a different animal than a regular civil rights suits like we've been forced to bring so far.

It'll still be frustrating and too slow, but I'm pretty sure that what SCOTUS does will have an effect here as well.
No one is more familiar with court delaying tactics than Alan Gura.
  #157  
Old 12-04-2012, 8:05 AM
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Originally Posted by OleCuss View Post
You just might be overly pessimistic on this one.

Once we get a good "carry case" through SCOTUS we can start effectively using things like Preliminary Injunctions. IIRC, this will be a bit of a different animal than a regular civil rights suits like we've been forced to bring so far.
The only difference between a preliminary injunction approach and the standard approach is (as far as I know) the amount of time the court can officially take to respond, unless the preliminary injunction is actually issued.

You (and possibly others who argue the heightened efficacy of the PI approach) are failing to account for one very important thing: as regards 2nd Amendment action, the main benefit of the PI approach works only if the court sides with you. Which is to say, only if the PI is actually granted. But the very core of the problem is that the right to keep and bear arms is a right that the majority of relevant courts hate and will do everything in their (considerable) power to minimize. Those courts will not grant our preliminary injunction requests.


Quote:
It'll still be frustrating and too slow, but I'm pretty sure that what SCOTUS does will have an effect here as well.
Oh, it'll have an effect, eventually. But not until we actually win California cases at that level. For the effects you speak of to actually take hold, we have to show that we can and will win against California respondents. That won't happen until it's clear to said respondents that the courts will side with us for the foreseeable future. The courts won't side with us in general, much less for the foreseeable future, until it's clear to them that the Supreme Court will side with us for the foreseeable future and that there are grave consequences to them for ignoring Supreme Court jurisprudence. But that latter can't happen in this environment because there is serious risk that we'll lose the Heller majority in just the next 4 years (which is a very short period of time in judicial terms), to say nothing of the next 10 or so.

Since the latter can't happen, the former won't happen, and that is why we must actually win all the California cases at the Supreme Court level. Preliminary injunctions will be useful for speeding up that process but will otherwise be useless against recalcitrant counties, because action against those counties has to be brought to courts in those areas.


No, I don't think I'm being overly pessimistic here at all, given what we're up against. Osterweil v Bartlett should be sufficient warning to us of what we can really expect.


One last thing: many here have been basing their assessment of the judicial situation on how courts have treated other, relatively benign issues. That is, how they've been behaving in general. But such behavior is not informative as to how they'll treat cases involving RKBA. RKBA is a right the courts in question hate with a passion and will do everything they can to extinguish. The informative historical context for this situation isn't that of the overall court behavior, it's that of the court behavior when they're faced with an issue they are passionate about and on which their bias conflicts with Supreme Court jurisprudence. The only thing that even comes close to our situation is that of the courts of the south during the civil rights movement. That's why NAACP v Alabama is so relevant.
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Last edited by kcbrown; 12-04-2012 at 8:28 AM..
  #158  
Old 12-04-2012, 8:57 AM
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A note about examining behavior of the southern courts during the civil rights movement...

It's important to remember that back then, the district courts answered directly to the Supreme Court. As a result, there was no "buffer" between the district courts and the Supreme Court.

Today, the appellate courts act as a buffer between the district courts and the Supreme Court. District courts answer to the appellate courts' jurisprudence, not that of the Supreme Court. Supreme Court jurisprudence is supposed to become that of the appellate courts, but history shows that to be laughably optimistic (see, e.g., Silveira v Lockyer and the the en banc denial for it, and pay attention especially to the 9th Circuit's definition of "militia" and how it conflicts with the Supreme Court's definition in Miller).

The very existence of the appellate courts makes possible widespread defiance of the Supreme Court, precisely because it is appellate court jurisprudence, and not Supreme Court jurisprudence, that district courts are beholden to.
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The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...

Last edited by kcbrown; 12-04-2012 at 9:01 AM..
  #159  
Old 12-04-2012, 9:02 AM
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I think that is still a little overly pessimistic.

I think that if the SCOTUS gives clear and explicit guidance on the current 2-step mangling of the 2A that the district courts will start to rule accordingly. You'll end up with pressure from both the lower courts and from the higher court for the circuit courts to respect our rights.

You'll also get a certain amount of peer pressure from other circuits who fairly willingly follow SCOTUS guidance.

This will all have an effect. The effect will not be enough to make me thrilled with the outcomes, but it will be there.
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  #160  
Old 12-04-2012, 9:02 AM
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Originally Posted by Maestro Pistolero View Post
[W]hat are the actual good outcomes of carry cases to which you refer?

I am optimistic that we will prevail when cert is finally granted, because to believe otherwise would be to accept the unthinkable. But until then, and correct me if I am wrong, there are no positive outcomes yet on federal carry cases.
Any victories at district or circuit are just appetizers before the main course.
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