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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #201  
Old 05-24-2018, 6:18 PM
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Originally Posted by wolfwood View Post
Flanagan is officially over in the lower court. The court entered judgement for the state and awarded the State costs.
So, time to have a sandwich and nap until, oh, about 2020 Jan 01 for a decision by the 3 judge panel of CA9. And then, en banc or asking SCOTUS for cert....
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  #202  
Old 05-24-2018, 7:14 PM
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I really didn't get the gist of this case. It was supposedly open carry but they were asking for CCW permits as relief?
My take is that they were asking for any form of carry. They said that since open carry is banned, their only option was concealed. But that is effectively banned in many areas by the “good cause” requirement.

The ruling sought is effectively, “Some form of carry is protected under the Constitution; the Legislature can regulate whether it is open or concealed.”

Obviously this is broad strokes, but someone correct me if I’m totally wrong.
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  #203  
Old 05-26-2018, 3:50 AM
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Originally Posted by CalAlumnus View Post
My take is that they were asking for any form of carry. They said that since open carry is banned, their only option was concealed. But that is effectively banned in many areas by the “good cause” requirement.

The ruling sought is effectively, “Some form of carry is protected under the Constitution; the Legislature can regulate whether it is open or concealed.”

Obviously this is broad strokes, but someone correct me if I’m totally wrong.
That's basically what they argued in Peruta. I'm not aware that they even challenged the actual OC statutes or asked for OC licenses.
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  #204  
Old 05-26-2018, 5:45 AM
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That's basically what they argued in Peruta. I'm not aware that they even challenged the actual OC statutes or asked for OC licenses.
No, Peruta was about concealed only, with the final ruling saying that “concealed carry isn’t protected.”

Peruta started before open carry was (effectively) banned, which limited its ability to argue that some form of carry was protected.
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  #205  
Old 05-26-2018, 6:10 AM
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Right, I mean Flanagan didn't challenge the OC statutes. Peruta clearly didnt.
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  #206  
Old 06-08-2018, 12:44 AM
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"I've been denied concealed, I must be provided some form of..."

Makes perfect sense to me as an argument....
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  #207  
Old 06-08-2018, 1:45 AM
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"I've been denied concealed, I must be provided some form of..."

Makes perfect sense to me as an argument....
As far as the courts are concerned (from the decisions I've read), the method of carry they've provided is: "You can shove it up your ..."
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  #208  
Old 06-08-2018, 8:25 PM
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The NRA just filed its notice of appeal
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  #209  
Old 06-09-2018, 7:11 AM
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Could it now get stayed pending the outcome of young? Or possibly rolled in?
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  #210  
Old 06-10-2018, 10:43 AM
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Could it now get stayed pending the outcome of young? Or possibly rolled in?
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 06/12/2018. Transcript ordered by 07/05/2018. Transcript due 08/03/2018. Appellants California Rifle & Pistol Association, Inc., Michelle Flanagan, Samuel Golden, Dominic Nardone and Jacob Perkio opening brief due 09/12/2018. Appellee Xavier Becerra answering brief due 10/12/2018. Appellant's optional reply brief is due 21 days after service of the answering brief. [10897314] (JBS) [Entered: 06/05/2018 02:39 PM]

Hopefully a decision in young will come out before their first brief is due. If not it might get stayed. It will not be rolled in.

Of course Nichols needs to be decided before Flanagan and that is directly on CA law.

Last edited by wolfwood; 06-10-2018 at 10:46 AM..
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  #211  
Old 07-26-2018, 8:51 AM
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DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 06/12/2018. Transcript ordered by 07/05/2018. Transcript due 08/03/2018. Appellants California Rifle & Pistol Association, Inc., Michelle Flanagan, Samuel Golden, Dominic Nardone and Jacob Perkio opening brief due 09/12/2018. Appellee Xavier Becerra answering brief due 10/12/2018. Appellant's optional reply brief is due 21 days after service of the answering brief. [10897314] (JBS) [Entered: 06/05/2018 02:39 PM]

Hopefully a decision in young will come out before their first brief is due. If not it might get stayed. It will not be rolled in.

Of course Nichols needs to be decided before Flanagan and that is directly on CA law.
Wolfwood,

When time permits, I'd love an updated analysis on this in light of your excellent (temporary or otherwise) Young decision.

Many thanks for your work.
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  #212  
Old 07-26-2018, 1:16 PM
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The decision in Young v Harris is out but I do not believe final until time runs for moving for reconsideration, an en banc hearing, or a stay is granted pending petition for a writ. Meanwhile, even if it cannot be cited as precedent you bet it will be raised in the opening brief.
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  #213  
Old 07-26-2018, 1:49 PM
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Time will not "run out". 9CA rules say they can exceed time periods at their discretion (just like what happened in Peruta when the time for sua sponte had run out and they did it anyway).
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  #214  
Old 07-26-2018, 2:30 PM
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Time will not "run out". 9CA rules say they can exceed time periods at their discretion (just like what happened in Peruta when the time for sua sponte had run out and they did it anyway).
That took a YEAR btw
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  #215  
Old 07-26-2018, 2:30 PM
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A question I have is why we (the courts) are still arguing over whether or not 2A equals keep and bear. Heller was pretty specific. After lengthy discussion of what those terms meant in the historical context, it states:

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Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
The DC Circuit Court picked up on that in Wrenn:
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This reading finds support in parts of Heller I that speak louder than the Court’s aside about where the need for guns is “most acute.” That remark appears when Heller I turns to the particular ban on possession at issue there. By then the Court has spent over fifty pages giving independent and seemingly equal treatments to the right to “keep” and to “bear,” first defining those “phrases” and then teasing out their implications. See id. at 570-628. In that long preliminary analysis, the Court elaborates that to “bear” means to “‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). That definition shows that the Amendment’s core must span, in the Court’s own words, the “right to possess and carry weapons in case of confrontation.” Id. at 592 (emphasis added).
Am I missing something here or must there be an endless round of court cases to reprove/disprove what the US Supreme Court has already ruled?
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  #216  
Old 07-27-2018, 1:00 PM
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There already has been and it will continue until SCOTUS weighs in on carry, feature & capacity bans of arms in common use, waiting periods, rosters, etc.

AND after SCOTUS weighs in, recalcitrant States like CA will have to be sued item by item - unless Congress passes civil rights legislation (like the Voting Rights Act) that says certain States who have abused peoples rights cannot legislate on those areas without first getting Federal permission. I'd be cool with that here in CA - as long as we had the clear SCOTUS / Federal law guidance I mentioned.
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Last edited by Drivedabizness; 07-27-2018 at 1:00 PM.. Reason: spelling
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  #217  
Old 09-21-2018, 10:22 AM
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https://www.scribd.com/document/3891...cerra-Petition

petition for initial en banc
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  #218  
Old 09-21-2018, 10:48 AM
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What exactly does this mean for Young? If there is an en banc panel?
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  #219  
Old 09-21-2018, 11:26 AM
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What exactly does this mean for Young? If there is an en banc panel?
I am not going to talk about that until the response is done.
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  #220  
Old 09-21-2018, 11:39 AM
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I am not going to talk about that until the response is done.
Sorry about that. Ya, probably a good idea.
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  #221  
Old 09-21-2018, 2:24 PM
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What exactly does this mean for Young? If there is an en banc panel?
CA wants to "tag along" and have Flanagan and young heard together IF there's en banc I guess just to get their 2 cents in?
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  #222  
Old 09-21-2018, 2:31 PM
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The record here includes an expert report (and deposition testimony) by a leading empirical researcher, Stanford Law Professor John Donohue, concluding that right-to-carry regimes akin to the ones sought by the plaintiffs in this case and in Young “substantially raise[] overall violent crime”
Hmmmmmmmm..... bull****!
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  #223  
Old 09-21-2018, 3:22 PM
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Since when is California's open carry ban a "long standing regulation" that is "presumptively lawful?" I mean like, really? Five years is enough to be "long standing"? NOT! Moreover, it was not until 1968 fifty years ago, that the State imposed open unloaded because the Legislature was afraid of the Black Panthers prowling the Capitol Building.
On top of all that, the petition states that the plaintiffs and defendants submitted conflicting expert reports as to the effect of open carry laws--yet the judge granted summary judgment for the State? The rule on summary judgment is that if there are any disputed issues of fact, the case must be heard by a jury. (Not that this is the first time I have seen a federal trial court judge decide cases despite the conflicts.)
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  #224  
Old 09-23-2018, 3:19 AM
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Since when is California's open carry ban a "long standing regulation" that is "presumptively lawful?" I mean like, really? Five years is enough to be "long standing"? NOT! Moreover, it was not until 1968 fifty years ago, that the State imposed open unloaded because the Legislature was afraid of the Black Panthers prowling the Capitol Building.
On top of all that, the petition states that the plaintiffs and defendants submitted conflicting expert reports as to the effect of open carry laws--yet the judge granted summary judgment for the State? The rule on summary judgment is that if there are any disputed issues of fact, the case must be heard by a jury. (Not that this is the first time I have seen a federal trial court judge decide cases despite the conflicts.)
It almost doesn't matter. The 3rd Circuit ignored the fact that NJ didn't incorporate open carry into the permit scheme until 1966, and instead used the CC permit scheme date of the 1920's to show it was "longstanding". I suspect CA9 might try the same tact.
It goes along with what these anti judges have been doing the whole time, and justify a law by pointing to some other laws' existence.
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  #225  
Old 09-24-2018, 1:22 PM
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It almost doesn't matter. The 3rd Circuit ignored the fact that NJ didn't incorporate open carry into the permit scheme until 1966, and instead used the CC permit scheme date of the 1920's to show it was "longstanding". I suspect CA9 might try the same tact.
It goes along with what these anti judges have been doing the whole time, and justify a law by pointing to some other laws' existence.
It seems inevitable that they will come up with some excuse....
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  #226  
Old 09-24-2018, 6:38 PM
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Hey...correct me if im wrong...but..are the defendants trying to go for an enbanc trial BEFORE going to a three judge panel of appeals on this case? is that possible?
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  #227  
Old 09-24-2018, 9:11 PM
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Hey...correct me if im wrong...but..are the defendants trying to go for an enbanc trial BEFORE going to a three judge panel of appeals on this case? is that possible?
Although it is not a trial but an appeal, yes, that is exactly what they are trying to do, and yes, it is possible. The alternative is that Flanagan would get stayed pending the determination in Young.
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  #228  
Old 09-25-2018, 4:26 PM
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Although it is not a trial but an appeal, yes, that is exactly what they are trying to do, and yes, it is possible. The alternative is that Flanagan would get stayed pending the determination in Young.
so that means if flanagan merges with young, sucessfully goes enbanc and it gets denied like peruta..that means it gets fastracked to SCOTUS? Am I correct?
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  #229  
Old 09-25-2018, 4:52 PM
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so that means if flanagan merges with young, sucessfully goes enbanc and it gets denied like peruta..that means it gets fastracked to SCOTUS? Am I correct?
Certainly faster than if it has to trail Young. I mean, look at poor old Nichols, who has been hanging around the court of appeal since before Peruta went en banc, and he is still waiting for a decision.
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  #230  
Old 09-25-2018, 9:57 PM
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Certainly faster than if it has to trail Young. I mean, look at poor old Nichols, who has been hanging around the court of appeal since before Peruta went en banc, and he is still waiting for a decision.
if it does go enbanc with young..in which i believe it will..it will be denied..in which will it go to scotus..another thing to consider..if it does go enbanc and denied and kavanaugh gets to scotus...in which he will..its going to be a S$$T show...california does NOT want LOC...they are trying everthing to avoid/delay nichols...when it reaches scotus there is a very good chance they will hear it..as well as other cases from other states..

Last edited by stag6.8; 09-25-2018 at 10:07 PM..
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  #231  
Old 09-25-2018, 10:34 PM
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  #232  
Old 09-26-2018, 12:50 PM
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if it does go enbanc with young..in which i believe it will..it will be denied..in which will it go to scotus..another thing to consider..if it does go enbanc and denied and kavanaugh gets to scotus...in which he will..its going to be a S$$T show...california does NOT want LOC...they are trying everthing to avoid/delay nichols...when it reaches scotus there is a very good chance they will hear it..as well as other cases from other states..
We will know about Kavanaugh soon enough, but it is looking decidedly dicey with all of these women crawling out of the woodwork, all obviously designed to torpedo his chances. (Which was the plan all along with Ford. Whatever you want to say about DiFi, she is a very experienced political operative, and this was her Hail Mary pass.) Which is too bad, he is eminently qualified as a jurist, except for his alcohol problem in his youth. There is nothing to suggest that he is a problem drinker now, but that probably doesn't matter. I was reading last night that there are four or five Republican senators who haven't committed yet, and Kavanaugh needs them all.
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  #233  
Old 09-26-2018, 1:04 PM
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We will know about Kavanaugh soon enough, but it is looking decidedly dicey with all of these women crawling out of the woodwork, all obviously designed to torpedo his chances. (Which was the plan all along with Ford. Whatever you want to say about DiFi, she is a very experienced political operative, and this was her Hail Mary pass.) Which is too bad, he is eminently qualified as a jurist, except for his alcohol problem in his youth. There is nothing to suggest that he is a problem drinker now, but that probably doesn't matter. I was reading last night that there are four or five Republican senators who haven't committed yet, and Kavanaugh needs them all.
Two of them are no longer appearing or willing to take this any further.

Feinstein didn't do this. It got leaked.

How do you know he had an alcohol problem?
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  #234  
Old 09-26-2018, 3:50 PM
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Two of them are no longer appearing or willing to take this any further.

Feinstein didn't do this. It got leaked.

How do you know he had an alcohol problem?
Feinstein brought it up in a vague and ambiguous way that was certain to raise questions. It did. The identity of the complainant, in fact the letter that Feinstein received, were leaked within 24 hours in a way that gave Feinstein credible deniability. Don't try to tell me she had no hand in it.

As to the alcohol, for one Kavanaugh admitted it in his interview on Fox that he drank as a senior in High School and at Yale, sometimes to excess, and second, his roommate at Yale said that Kavanaugh would drink heavily at times, and that when he did he became aggressive with women. Plus he was a member of an infamous party frat. It is pretty solid stuff.
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  #235  
Old 09-26-2018, 7:53 PM
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Feinstein brought it up in a vague and ambiguous way that was certain to raise questions. It did. The identity of the complainant, in fact the letter that Feinstein received, were leaked within 24 hours in a way that gave Feinstein credible deniability. Don't try to tell me she had no hand in it.

As to the alcohol, for one Kavanaugh admitted it in his interview on Fox that he drank as a senior in High School and at Yale, sometimes to excess, and second, his roommate at Yale said that Kavanaugh would drink heavily at times, and that when he did he became aggressive with women. Plus he was a member of an infamous party frat. It is pretty solid stuff.
Uhh, I’ve watched you over the last year and your credibility has just hit zero!

You are a covert anti 2A individual
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  #236  
Old 09-26-2018, 9:21 PM
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Uhh, I’ve watched you over the last year and your credibility has just hit zero!

You are a covert anti 2A individual
Really? You really believe that a letter that Feinstein had in her hot little hands that was leaked to the press the next day was done without her knowledge? When you add to the fact that she'd had the letter for six weeks but did not share with her colleagues demonstrates the proposition without reasonable dispute that it was a set up from the word go to delay the process when all other ploys had failed. You know of course that it was Feinstein and Schumer who organized the protesters on the first day of the hearings? (Yes, they admitted it.) I guess you don't read the news. All of this is available on any channel you care to look at, so what this has to do with my credibility is...well.. zero.

How you come to the further conclusion from these comments that I am somehow a "covert anti-2A individual" is an utter mystery. Being rather cynical about what the anti-gun Democrats (who control the state) and the Federal Courts (again dominated by anti-gun Democrats) will do to our gun rights, leaving us no remedy except in a Supreme Court that has not been interested, for whatever reason, of revisiting these critical issues is not anti-gun, it is realistic.
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  #237  
Old 09-26-2018, 11:26 PM
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Really? You really believe that a letter that Feinstein had in her hot little hands that was leaked to the press the next day was done without her knowledge? When you add to the fact that she'd had the letter for six weeks but did not share with her colleagues demonstrates the proposition without reasonable dispute that it was a set up from the word go to delay the process when all other ploys had failed. You know of course that it was Feinstein and Schumer who organized the protesters on the first day of the hearings? (Yes, they admitted it.) I guess you don't read the news. All of this is available on any channel you care to look at, so what this has to do with my credibility is...well.. zero.

How you come to the further conclusion from these comments that I am somehow a "covert anti-2A individual" is an utter mystery. Being rather cynical about what the anti-gun Democrats (who control the state) and the Federal Courts (again dominated by anti-gun Democrats) will do to our gun rights, leaving us no remedy except in a Supreme Court that has not been interested, for whatever reason, of revisiting these critical issues is not anti-gun, it is realistic.
Yes, you are obviously an ANTI. For one thing, we can tell just by your definition of "news." My suggestion is that you hang onto your vagina hat, things are going to get a might rough for you over the next 8 weeks. The people of this country are not as stupid as you think they are.
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  #238  
Old 09-27-2018, 9:49 AM
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Mod hat on.

One pass at 'I do not find a thing credible' is sufficient - let us not harp on the attributes of individual members.
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Old 10-04-2018, 7:34 AM
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wolfwood wolfwood is offline
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http://michellawyers.com/wp-content/...g-Brief_16.pdf

opening brief was filed

Last edited by wolfwood; 10-04-2018 at 5:41 PM..
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Old 10-05-2018, 8:42 PM
CCWFacts CCWFacts is online now
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So, if I'm understanding, they want to skip the panel and go to an en banc directly? Is this commonly done? I've never heard of it (IANAL). I guess the logic is, spend minimum time at the 9CCA level, to go to cert faster? This is good, because I think cert isn't a thing that California wants at this point, and California might just do a risk assessment and decide that fighting this case at SCOTUS isn't desirable, just like what happened with Wrenn.
Following the issuance of a three judge panel order or opinion, parties may seek rehearing before an en banc court.
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Last edited by CCWFacts; 10-05-2018 at 8:51 PM..
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