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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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#42
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Can you explain the basis for this supposition?
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#43
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I wasn't going to nitpick this, but it's the AG who has 60 days to intervene after receiving notice. A party who files a document calling into question the constitutionality of a state statute must file and serve the requisite notice "promptly." But it really isn't about whether Peruta's attorneys "know the law" on the timing and filing of these notices.
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#45
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The OP and others know exactly why the notice was not served and filed. You have to wonder why the issue is being presented the way it is in this thread.
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#46
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#47
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I'm still confused however, about whether CGF wanted or didn't want the 2 cases to be combined. Did they originally want Richards and Peruta combined, and are we glad that the two cases are not combined now because of the issue concerning Rule 5.1 and 28 U.S.C. §2403? Erik. |
#48
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Richards: While Alan Gura did in fact submit the required notification, it was still incumbent upon the district court clerk to make the official notification and docket entry. This was not done. The clerk did not comply with 28 USC 2403.
Peruta: From what we can see, at this point, there was never an attempt by the initial attorney (complaint) nor the subsequent attorneys (amended complaint) to address this issues. Certainly the court clerk never attempted to comply with 2403. The court has wide discretion on how it may apply 2403 (see FRCP 5.1), up to and including a remand (for both cases) back to district court to make the required notification(s). The court may hold that the certification must be made. In which case, the State has 60 days to tell the court that it wants to be involved... or not. In the meantime, orals will be held and we may learn more at that time. One thing is certain. Should the court require an answer from the State, they "may reject the constitutional challenge [before the 60 days has elapsed], but may not enter a final judgment holding the statute unconstitutional." Rule 5.1(c). Baker: Section 2403 does not come into play. The State was noticed (they were part of the initial complaint) as they were a defendant in the lawsuit. That the district court dismissed them (Younger), does not stop the case. The State of Hawaii actually noticed the appellate court that they were not going to challenge the appeal.
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Listings of the Current 2A Cases, over at the Firing Line. |
#49
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#50
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Don't be coy. What is your explanation for the failure to notify?
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Proud to belong to the NRA Members' Council of Santa Clara County Disclaimer: All opinions are entirely my own. |
#51
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Thanks Gray. It is somewhat reassuring, at least, that the net result is that Gura may get to drive the bus as a result of this. By the way,
doesn't the court itself also have a responsibility to notice the AG? See this post from Esquappellate at Maryland Shooters: Quote:
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www.christopherjhoffman.com The Second Amendment is the one right that is so fundamental that the inability to exercise it, should the need arise, would render all other rights null and void. Dead people have no rights. Magna est veritas et praevalebit |
#52
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Wow the Peruta case grinds my gears. This is exactly why we dont want people touching 2A cases who shouldnt be. At least gura gets to proceed uninhibited or less inhibited by a stupid case.
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#53
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If the court has decided that there is a constitutional issue with the statute (and it is clear that the court is thinking this), they have several options open to them - for both cases. While I believe that Gura has the better argument, this does not preclude the court from its options.
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Listings of the Current 2A Cases, over at the Firing Line. |
#54
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The chances of Richards plaintiffs being remanded over Peruta's mistake is zero. The cases are not consolidated in any way. The only thing in held in tandem with them is that they are being argued on the same day in front of the same panel.
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#55
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"A Government big enough to give you everything you want, is strong enough to take everything you have." "Those who hammer their guns into plows, will plow for those who do not." Thomas Jefferson. "a system of licensing the right of self-defense, which doesn’t recognize self-defense as “good cause” Don Kilmer |
#56
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To remand Richards for something that was not their particular fault (the district court itself not doing the notification), totally unheard of procedurally, something that a man of decades of appellate experience has dealt with (esqappellate) has never seen at all. I trust esqappellate on the matter. Peruta, not so much. |
#57
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Care to explain why he didn't file a notice when he amended the complaint? Can we NRA members get our money back from his malpractice? -Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#58
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#59
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I had to deal up close with the damage done by the Peruta loss, and I can't be charitable to legal malpractices done from the get go at all. |
#60
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So now you know what they knew! Do you also know when they knew it? Did you know it before they knew it? Damn you're good. Maybe you can use these psychic powers of yours to share with us the outcome of the case and save us the time and trouble of waiting.
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"A Government big enough to give you everything you want, is strong enough to take everything you have." "Those who hammer their guns into plows, will plow for those who do not." Thomas Jefferson. "a system of licensing the right of self-defense, which doesn’t recognize self-defense as “good cause” Don Kilmer |
#61
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__________________
"A Government big enough to give you everything you want, is strong enough to take everything you have." "Those who hammer their guns into plows, will plow for those who do not." Thomas Jefferson. "a system of licensing the right of self-defense, which doesn’t recognize self-defense as “good cause” Don Kilmer |
#62
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Still speculating. Still whistling past a grave yard.
__________________
Take not lightly liberty To have it you must live it And like love, don't you see To keep it you must give it "I will talk with you no more. I will go now, and fight you." (Red Cloud) |
#63
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Bauer v. Harris argues against that, too. Perhaps he should stick to billing NRA and CRPAF for... writing copy for email blasts?
-Brandon
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Brandon Combs I do not read private messages, and my inbox is usually full. If you need to reach me, please email me instead. My comments are not the official position or a statement of any organization unless stated otherwise. My comments are not legal advice; if you want or need legal advice, hire a lawyer. |
#64
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Take not lightly liberty To have it you must live it And like love, don't you see To keep it you must give it "I will talk with you no more. I will go now, and fight you." (Red Cloud) |
#65
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BINGO!!
__________________
Take not lightly liberty To have it you must live it And like love, don't you see To keep it you must give it "I will talk with you no more. I will go now, and fight you." (Red Cloud) |
#66
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Still whistling Gray.
__________________
Take not lightly liberty To have it you must live it And like love, don't you see To keep it you must give it "I will talk with you no more. I will go now, and fight you." (Red Cloud) |
#67
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__________________
Take not lightly liberty To have it you must live it And like love, don't you see To keep it you must give it "I will talk with you no more. I will go now, and fight you." (Red Cloud) |
#68
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__________________
Take not lightly liberty To have it you must live it And like love, don't you see To keep it you must give it "I will talk with you no more. I will go now, and fight you." (Red Cloud) |
#69
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Last edited by FABIO GETS GOOSED!!!; 12-02-2012 at 4:16 PM.. |
#70
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Kinda curious. . . I don't think this will work, but IIRC, Chuck Michels went and talked to the state legislature about the implications of pending legislation with regard to Peruta and how that would jeopardize state law. This means that the state was certainly aware of the litigation and at least some of its implications.
Could they argue that this was a sort of notice if there were an AG representative present at the meeting/hearing? Note that I'm asking if it could be argued. I don't actually think it will work because of both timing issues and proper notification channels not being used.
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CGN's token life-long teetotaling vegetarian. Don't consider anything I post as advice or as anything more than opinion (if even that). |
#71
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#72
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You didn't answer the question, which was very specific.
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#73
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#74
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__________________
Take not lightly liberty To have it you must live it And like love, don't you see To keep it you must give it "I will talk with you no more. I will go now, and fight you." (Red Cloud) |
#75
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Not trying to pick a fight with you... But according to some of your questions to Gray, it seems you imply that the District Court had some responsibility to notify the state (since it would seem awkward to me for the District Judge to just sit there and watch the Plaintiff make these errors without doing something), and that is what I was thinking as well, so if that were the case, wouldn't it be predictable for the Ninth Circuit to remand Peruta with instructions based on that issue? Under rule 62(b), don't District Judges take it upon themselves to issue stays of proceedings and judgements based on another big case on the horizon, or is rule 62(b) always something that one or both parties ask for (or am I comparing apples to oranges)? Please 101 me on that (anyone, not just you). Erik. |
#76
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If you want some wannabe law student practice, why don't you speculate what the "instructions" might say if the 9th circuit remanded Peruta? What exactly would the 9th circuit be telling the district court to do? What would the 9th circuit do with the district court judgment? By the way I realize I'm answering your question with a question. Last edited by FABIO GETS GOOSED!!!; 12-02-2012 at 4:56 PM.. |
#77
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Could you explain this to us. I would have no idea why after reading the context of the OP and what your views mean.
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#79
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But as someone who is not at all legally sophisticated, I could be very wrong on that.
__________________
CGN's token life-long teetotaling vegetarian. Don't consider anything I post as advice or as anything more than opinion (if even that). |
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