Grace v DC, Wrenn v DC -- en banc DENIED 9/28 (CCW good cause)

[spike90049]

From what I'm reading here they have 14 days to file for rehearing unless a time extension is granted.. ? Which would put that 14 days as today...

http://www.ca2.uscourts.gov/clerk/ca...7/rule_40.html

[spike90049]

Number of Rehearings En Banc Granted by Circuit,
2011 to July 2016
Circuit Total Number of Cases

D.C.
4
First
4
second
2
third
9
Fourth
7
Fifth
17
sixth
17
seventh
13
eighth
19
Ninth
40
tenth
6
eleventh
7

Interesting anyway.

And the 9th, LOL, 40 of them. Of course the Ninth is the outlier.

[surfgeorge]

Originally Posted by spike90049

Number of Rehearings En Banc Granted by Circuit,
2011 to July 2016
Circuit Total Number of Cases

D.C.
4
First
4
second
2
third
9
Fourth
7
Fifth
17
sixth
17
seventh
13
eighth
19
Ninth
40
tenth
6
eleventh
7

Interesting anyway.

And the 9th, LOL, 40 of them. Of course the Ninth is the outlier.

It's not really that out of proportion if one considers the size of the population served by each circuit and thus the relative number of lawsuits filed in each.

The following is "dated" material, but likely is still relatively representative of the current situation:

"The states that fall within the 9th Circuit represent almost 20 percent of the U.S. population (59.6 million people out of about 299 million). That means that the 12 other federal circuit courts of appeal split up the remaining 80 percent of the country, making the 9th Circuit three times their average size. Consistent with the population weight it carries, the 9th Circuit in 2006 accounted for about 18.4 percent of all decided federal appeals cases. Compare that with the 1st Circuit, with 4.7 percent of the population and 3.2 percent of decisions, or the 8th Circuit, with 6.7 percent of the population and 6.7 percent of decisions."

[wireless]

Originally Posted by spike90049

From what I'm reading here they have 14 days to file for rehearing unless a time extension is granted.. ? Which would put that 14 days as today...

http://www.ca2.uscourts.gov/clerk/ca...7/rule_40.html

Wrong circuit. That's the 2nd. We are dealing with D.C. in Wrenn.

[spike90049]

Originally Posted by wireless

Wrong circuit. That's the 2nd. We are dealing with D.C. in Wrenn.

**** my mistake...looking

[spike90049]

http://www.dccourts.gov/internet/doc...12-01-2014.pdf

Same time frame according to the above.

Rule 40. Petition for Rehearing by the Division.
(a) Time to File; Contents; Answer;Action by the Division if Granted.
(1) Time.Unless the time is shortened or extended by order, a petition for rehearing by the division may be filed within 14 days after entry of judgment

So the question is how long until its a "Judgment" as right now its an Opinion.

Am I reading that right?

[TruOil]

Originally Posted by spike90049

http://www.dccourts.gov/internet/doc...12-01-2014.pdf

Same time frame according to the above.

Rule 40. Petition for Rehearing by the Division.
(a) Time to File; Contents; Answer;Action by the Division if Granted.
(1) Time.Unless the time is shortened or extended by order, a petition for rehearing by the division may be filed within 14 days after entry of judgment

So the question is how long until its a "Judgment" as right now its an Opinion.

Am I reading that right?

Yes. According to my (out of date) FRCP, Rules of Appellate Procedure, Rule 36, "A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment."
I have no idea when judgment was entered.

[CCWFacts]

So does this mean that Grace v Wrenn is finished in the DC appeals court, and their only option left is ask for cert? If so, that's huge for us. I would expect that they will not ask for cert as there is a very high risk of establishing nationwide shall-issue if they do that, much to the enragement of the Democratic Party.

Edit: from their order of July 25:

It is ORDERED, on the court's own motion, that the Clerk withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. This instruction to the Clerk is without prejudice to the right of any party to move for expedited issuance of the mandate for good cause shown.

If they haven't made a timely petition for en banc, then the mandate should issue 7 days later right? If I'm understanding this

[Sputnik]

I'm not sure I'm understanding. There is generally 14 days after the judgement is made "official" by the clerk wherein the losing party may file for rehearing en banc, but...in this case the clerk has been ordered to not finalize/make "official" the judgement until after the losing party asks for rehearing in a timely manner. (That's if they ask.)

So what is timely and why wait until after DC asks for rehearing to issue the mandate? Is timely still 14 days or does it become whatever the court allows? Just how long does the court wait and see what DC intends to do before they dot the last i and make it "final"?

All this FRCP mumbo jumbo makes my head spin sometimes.

[thorium]

Summarizing what posters above are saying, Here's what my reading uncovered (I'm as prone to mistakes as any of you, so please correct me where wrong):

1) judgement was entered 7/25

Source: http://michellawyers.com/grace-v-district-of-columbia/

2) the mandate (which makes the judgment now effective) issues 7 days after the time to file for rehearing / rehearing en banc elapses

Source: http://www.dccourts.gov/internet/doc...02-04-2016.pdf (rule 41)

3) the time for filing for filing for rehearing is 14 days from judgment; 8/8

Source: same as above, rule 35, which refers to rule 40



So unless I'm missing something (likely):
1) DC has already gone past their 14 days and hasn't filed for rehearing
2) the mandate would issue and the decision would be effective 8/15

[thorium]

I figured out where we're going wrong. I think we're looking at either outdated rules, or the rules of the "state" appeals court.

DC has 45 days to file for rehearing: September 8th.

See Rule 49 here -- https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-%20Circuit%20Rules/$FILE/RulesDecember2016FRAPandDCCirFinalF.pdf#page137

Quoted in part:

(1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, unless an order shortens or extends the time, the petition may be filed by any party within 45 days after entry of judgment if one of the parties is:
(A) the United States;
(B) a United States agency;

DC civil government is, of course, a US govt agency of sorts.

[press1280]

Originally Posted by thorium

I figured out where we're going wrong. I think we're looking at either outdated rules, or the rules of the "state" appeals court.

DC has 45 days to file for rehearing: September 8th.

See Rule 49 here -- https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-%20Circuit%20Rules/$FILE/RulesDecember2016FRAPandDCCirFinalF.pdf#page137

Quoted in part:

(1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, unless an order shortens or extends the time, the petition may be filed by any party within 45 days after entry of judgment if one of the parties is:
(A) the United States;
(B) a United States agency;

DC civil government is, of course, a US govt agency of sorts.

I don't think they qualify as either. It's 30 days for them.

[CCWFacts]

Originally Posted by press1280

I don't think they qualify as either. It's 30 days for them.

Wiki says the DC gov't is, indeed, a Federal agency:

Congress retains the right to review and overturn laws created by the council and intervene in local affairs. The District Government is within the Legislative branch of Federal government, which makes the municipal government a Federal agency

So what does that mean for timelines? When is their cut-off for asking for en banc?

My prediction is they will ask for en banc. They lose nothing by doing it. Cert is unlikely to be granted and it's very risky to them if they do ask for it. But en banc is no harm.

[surfgeorge]

Since I'm as uninformed and unknowledgeable about the court of appeals for D.C. laws as anyone else, I'll chime in with my meaningless prediction:

If the following is true: "The decision is stayed pending the resolution of any en banc petition. The District must file its petition for en banc review within 45 days of judgment. And it can ask for an extension of time to file its petition."

I predict that D.C. will file for an extension, or as many extensions as they can, and that at least one will be granted. On the last day of that final extension they will file for en banc (to a court heavily stacked with Obama appointees and others judges who will strongly oppose any meaningful right to carry for D.C.).

Then after x number of more months the en banc decision will go against Wrenn/Grace. Wrenn/Grace will petition for cert. SCOTUS will deny cert. Case(s) closed. (UNLESS, at least two of the SCOTUS antis are replaced by two pros...).

Of course I hope I'm wrong and that we all live happily ever...

[press1280]

Originally Posted by surfgeorge

Since I'm as uninformed and unknowledgeable about the court of appeals for D.C. laws as anyone else, I'll chime in with my meaningless prediction:

If the following is true: "The decision is stayed pending the resolution of any en banc petition. The District must file its petition for en banc review within 45 days of judgment. And it can ask for an extension of time to file its petition."

I predict that D.C. will file for an extension, or as many extensions as they can, and that at least one will be granted. On the last day of that final extension they will file for en banc (to a court heavily stacked with Obama appointees and others judges who will strongly oppose any meaningful right to carry for D.C.).

Then after x number of more months the en banc decision will go against Wrenn/Grace. Wrenn/Grace will petition for cert. SCOTUS will deny cert. Case(s) closed. (UNLESS, at least two of the SCOTUS antis are replaced by two pros...).

Of course I hope I'm wrong and that we all live happily ever...

I agree that they'll drag this out so long as they don't have to issue permits. But delay can help us because the opinion still is standing and is precedent in the DC Circuit.

[IVC]

Originally Posted by surfgeorge

Since I'm as uninformed and unknowledgeable about the court of appeals for D.C. laws as anyone else, I'll chime in with my meaningless prediction:

If the following is true: "The decision is stayed pending the resolution of any en banc petition. The District must file its petition for en banc review within 45 days of judgment. And it can ask for an extension of time to file its petition."

I predict that D.C. will file for an extension, or as many extensions as they can, and that at least one will be granted. On the last day of that final extension they will file for en banc (to a court heavily stacked with Obama appointees and others judges who will strongly oppose any meaningful right to carry for D.C.).

Then after x number of more months the en banc decision will go against Wrenn/Grace. Wrenn/Grace will petition for cert. SCOTUS will deny cert. Case(s) closed. (UNLESS, at least two of the SCOTUS antis are replaced by two pros...).

Of course I hope I'm wrong and that we all live happily ever...

Which is colloquially known here as the "Peruta path" and tends to be the consensus opinion.

It's a gamble with how old RBG is, but it's the only option open to them...

[Sputnik]

Thank you. Reading the posts after mine I have at least an understanding of what I had totally wrong in my mind.
Surfgeorge seems to have summed it up but I'll hold out at least some hope that en banc will not be granted. Positive mental attitude and all that

[TruOil]

To sum up. D.C. will petition for an en banc hearing. Doing so guarantees that it will have two shots at the apple, once in a favorable federal circuit court and again in the Supreme Court should it lose. There is no reason it should put all of its eggs in one basket and go for Supreme Court review now.

So see y'all again in a month when something happens.

[Paladin]

The ruling from the three-judge panel gives city officials 30 days to decide whether to appeal for review by a full complement of D.C. Circuit judges. If the court does not agree to revisit the case, the order to permanently block enforcement of the “good reason” requirement would take effect seven days later.

From:
https://www.washingtonpost.com/local...db8_story.html

Sounds like if D.C. doesn't appeal, come Sept 1st Washington D.C. will join -- at least as far as CCWs -- Free America!

And we should find out by this Friday.

ETA: I do not know the deadlines for a sua sponte en banc appeal....

[thorium]

I still think it's 45 days (I think the author of that WaPo article made an error citing the standard 30 days when a federal agency gets 45 days). I am wrong often so no hubris intended. We'll know more very soon!

45 days would mean a sept 8 deadline to file, and D.C. Joining free America on sept 15 If no appeal filed.

As paladin notes, if it is 30 days then the filing deadline is Thursday aug 24 and we'd know by Friday aug 25. If aug 25 comes and goes without a filing and without the Second Amedment Fundstion or other backers of the lawsuit screaming victory from the roof tops, then we know the deadline is really 45 days / sept 8.

[CCWFacts]

Originally Posted by thorium

I still think it's 45 days (I think the author of that WaPo article made an error citing the standard 30 days when a federal agency gets 45 days). I am wrong often so no hubris intended. We'll know more very soon!

45 days would mean a sept 8 deadline to file, and D.C. Joining free America on sept 15 If no appeal filed.

IANAL but my reading is, it's 45 days. DC is definitely a federal agency and so they have 45 days.

[FullMetalJacket]

D.C. has asked for an en banc re-hearing.

[phdo]

Originally Posted by FullMetalJacket

D.C. has asked for an en banc re-hearing.

Is that bad or good news?

[Ubermcoupe]

Originally Posted by FullMetalJacket

D.C. has asked for an en banc re-hearing.

And there it is...

Originally Posted by phdo

Is that bad or good news?

Time to run some scenarios -

DC Appeals Court says NO to enbanc = DC can petition to SCOTUS
Appeals Court says YES to enbanc = rehear the case

If Yes, then Appeals rules same = DC can petition to SCOTUS
If Yes, then Appeals says overturn = WE petition to SCOTUS

>SCOTUS can choose not to take the case for review preserving the previous court's ruling.

If SCOTUS takes case and says 2A wins - Carry for all the USA
If SCOTUS takes case and says DC wins - "May Issue" is *forever* legal

Throw in a couple of years here and there, sprinkle in some injunctions for good measure, and Voila' - status quo for another couple of years/half-decade/potentially forever.

#JusticeDelayedIsJusticeDenied

Let the tea leaf reading commence.

[Paladin]

First off, it appears that WaPo got the deadline correct (or DC filed early).

Originally Posted by phdo

Is that bad or good news?

I'm happy because I thought D.C would have learned from Heller and cut their losses in Wrenn-Grace the way Chicago/IL learned from McDonald and cut their losses in Moore-Shepard.

Originally Posted by Paladin

So, what will DC do? I honestly can't predict tonight, but I'm leaning toward them biting the bullet like IL did in Moore. My guess is that the antis will probably do almost anything to keep SF, LA and NYC from readily issuing CCWs.

For us, in CA, this is good news since this case might make it to SCOTUS. BUT we don't want it to get there until Kennedy is gone (probably after June 2018), and 1 or more of the 4 antis (RBG, Breyer, Kagan, Sotomayor) are gone. Then, it would be taken by SCOTUS and we'd win. So, we want it to go en banc to give "nature" time to "take its course" with those antis.

Before that, it would probably be denied cert by SCOTUS and die like Peruta....

If it seeks cert after Kennedy is replaced by another justice like Gorsuch, but the 4 antis remain, I'm leaning to Roberts rejoining the constitutionalists and granting cert and we win. But that's, IMO, too close to call.

ETA: references for future use
http://michellawyers.com/wrenn-et-al...olumbia-et-al/
http://michellawyers.com/grace-v-district-of-columbia/

[thorium]

En Banc petition:
http://michellawyers.com/wp-content/...ng-En-Banc.pdf

[abinsinia]

Without this standard, the District becomes a “right-to-carry” regime despite the Council’s legislative judgment, based on empirical studies,that such regimes are “associated with substantially higher rates of aggravated assault, rape, robbery and murder.” Grace Joint Appendix (“GJA”) 135

Yeah, all those people that subject themselves to training classes, and background checks, those people are just itching to commit "assault, rape, robbery and murder." but they had to get that licenses to carry first!

I wonder if there is a counter filing, or if there are amicus briefs filed for this?

[CCWFacts]

Originally Posted by FullMetalJacket

D.C. has asked for an en banc re-hearing.

I'm SHOCKED!

Not.

The most likely path forward is, in a few months it will be re-heard en banc, and then 6 to 12 months later they will issue a ruling overturning it, and then our side appeals to SCOTUS.

The only question then is have any of the 4.5 liberals left SCOTUS or not. If yes, we win. If no, we lose.

The "good" news is it will take 2 years to get to that point, and RBG will be 86, Breyer will be 81, and Kennedy will be 83. Sotomayor will be 65, so there's even a small chance of her leaving.

Someone could look at actuarial tables and figure out what are the odds of a change in composition. That's the only thing that matters. Both sides could submit one-page briefs to SCOTUS that say only, "our side should win because (we have | don't have) a right to carry a gun" and it would be just as effective as the 20 pages of high-quality legal writing they will do. Most people here are saying this is a purely political question, not a legal question, but in fact I would say it's much deeper than that, in that it's a racial question. Which group shall have power on the street, whites or non-whites? No legal arguments can answer that.

[Ubermcoupe]

There's also the chance that DC doesn't rehear ... Not sure how to calculate P(enbanc), so i'll leave that to someone else.

[champu]

Originally Posted by abinsinia

Yeah, all those people that subject themselves to training classes, and background checks, those people are just itching to commit "assault, rape, robbery and murder." but they had to get that licenses to carry first!

I wonder if there is a counter filing, or if there are amicus briefs filed for this?

The mere presence of the right to carry a firearm, whether a person exercises that right or not, causes people to rape more... is apparently the argument.

[CCWFacts]

Originally Posted by Ubermcoupe

There's also the chance that DC doesn't rehear ... Not sure how to calculate P(enbanc), so i'll leave that to someone else.

It's 0.999.

There are 7 Democrats and 5 Republicans on the court.

(Actually 4 Republicans but one Democrat is retiring this month so it will be 5.)

Some of these Democrats are old Clinton appointees, and if one "retires" within the next six months, it would be 6 to 6, putting us in good shape. Likewise, some on SCOTUS are old and in poor health and we only need one to leave. We're behind but their position rests on the health of some quite old people at this point.

[naeco81]

Good news for us, we want this to get to SCOTUS.

[FullMetalJacket]

So, assume en banc is granted. That takes, what, another year? Then appeal to SCOTUS. Assuming they take it, it'll be another year.

2 years from now is probably a pretty good time to have a carry case before SCOTUS. If they take it, of course.

C'mon, Ruth Bader Ginsburg, I'm counting on you!

[Drivedabizness]

with all the tea leaf reading, one of the logical possibilities has to be Congress regulating carry in DC

[press1280]

Originally Posted by Drivedabizness

with all the tea leaf reading, one of the logical possibilities has to be Congress regulating carry in DC

That'll happen when reciprocity happens. I don't see anyone voting for one but not the other.

[press1280]

Originally Posted by CCWFacts

It's 0.999.

There are 7 Democrats and 5 Republicans on the court.

(Actually 4 Republicans but one Democrat is retiring this month so it will be 5.)

Some of these Democrats are old Clinton appointees, and if one "retires" within the next six months, it would be 6 to 6, putting us in good shape. Likewise, some on SCOTUS are old and in poor health and we only need one to leave. We're behind but their position rests on the health of some quite old people at this point.

Senior judges do not participate in en banc in the DC Circuit. It's 7-4 and Janice Rogers Brown (who is a solid vote for our side) retires NEXT WEEK. So then it's 7-3 against us, unless Trump can fill the vacancy quickly.
So not good for us.

[wireless]

Even if they denied en banc, I wouldn't be surprised if they decided to not ask for cert and allow the circuit split to stand. They ****ed up big time in Heller, and I'm not sure they are willing to make that mistake again .

[Ubermcoupe]

Originally Posted by FullMetalJacket

So, assume en banc is granted. That takes, what, another year? Then appeal to SCOTUS. Assuming they take it, it'll be another year.

2 years from now is probably a pretty good time to have a carry case before SCOTUS. If they take it, of course.

C'mon, Ruth Bader Ginsburg, I'm counting on you!

I say 2-4 years. With extensions and other activities it's possible to schedule for next year (2018), then postpone hearing the actual arguments, then another year (or so?) until filing an opinion. In that time an injunction could (will?) be filed preventing the current ruling from going into effect.

CA9 has set a pretty good example for CADC on how to delay administering justice with the likes of Nordyke, Peruta, and (still waiting ...) Pena.

Originally Posted by press1280

Senior judges do not participate in en banc in the DC Circuit. It's 7-4 and Janice Rogers Brown (who is a solid vote for our side) retires NEXT WEEK. So then it's 7-3 against us, unless Trump can fill the vacancy quickly.
So not good for us.

Considering it could be a year or so before arguments are heard, it is possible for the President to start filling these vacancies, although Congress seems to be doing a poor job of doing anything, so ...


Of course it is also possible, however slim, DC circuit says we're done with this, let SCOTUS figure it out if they want...

Who knows. In the meantime, we wait.

#Sandwich

[press1280]

Originally Posted by wireless

Even if they denied en banc, I wouldn't be surprised if they decided to not ask for cert and allow the circuit split to stand. They ****ed up big time in Heller, and I'm not sure they are willing to make that mistake again .

Just depends how selfish they want to be AND the fact as others have mentioned, with Trump in the WH we could have a much stronger 2A court at any time. DC may decide just to go for it to get it over with once and for all.

[press1280]

Originally Posted by Ubermcoupe

I say 2-4 years. With extensions and other activities it's possible to schedule for next year (2018), then postpone hearing the actual arguments, then another year (or so?) until filing an opinion. In that time an injunction could (will?) be filed preventing the current ruling from going into effect.

CA9 has set a pretty good example for CADC on how to delay administering justice with the likes of Nordyke, Peruta, and (still waiting ...) Pena.



Considering it could be a year or so before arguments are heard, it is possible for the President to start filling these vacancies, although Congress seems to be doing a poor job of doing anything, so ...


Of course it is also possible, however slim, DC circuit says we're done with this, let SCOTUS figure it out if they want...

Who knows. In the meantime, we wait.

#Sandwich

He should be able to start nominating right away, but it seems they are way behind, coupled with Congress' ineptitude. If I were him I'd find pro-2A judges in the district courts to elevate to the circuit courts and backfill those later. IMO the district judges are just not as relevant since almost all gun cases get appealed.