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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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Richards v. Prieto (CCW)
Richards v. Prieto [Yolo County]
(FKA Sykes v. McGinness) Issue: 2A Right to Bear Arms Outside the Home Current Status: As of 3/24/2014: Richards' response due 4/11/2014; possible en banc review. 3/21/2014: Court directs Richards to file response to petition NLT 4/11/2014. 3/18/2014: Prieto/Yolo petition for rehearing en banc. 3/5/2014: 9CA Panel Opinion (unpublished); (attached pending RECAP) 11/26/2013 - SAF's 28(j) reply letter (Piszczatoski/Drake v. Filko), and 28(j) letter (U.S. v. Chovan). 11/13/2013 - Yolo's 28(j) letter (Piszczatoski/Drake v. Filko) 9/16/2013 - SAF's 28(j) letter (People v. Aguilar) 12/6/2012 - Oral Argument (Audio) 12/2/2012-5/29/2013 - Various 28j / Supp. Auth. filed Trial Court: E.D. Cal. Case No.: 2:09-cv-01235 Docket: http://ia700408.us.archive.org/4/ite...26.docket.html Appellate Court: 9CA Case No.: 11-16255 Docket: http://ia601700.us.archive.org/8/ite...55.docket.html Links: CGF Wiki for this case: http://wiki.calgunsfoundation.org/Richards_v._Prieto CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Li...st_and_Present Last edited by fizux; 03-24-2014 at 6:12 PM.. Reason: updates |
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Just an FYI |
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Part of the delay may be related to another case (Mehl) which had procedural priority at 9CA, so the decision in this case would have had to follow Mehl's holding if it was on point. Mehl came out recently, and thankfully didn't do any damage, so the coast is clear for the Richards/Peruta/Baker panel.
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Nationwide Master List of Current 2A Cases, courtesy of Al Norris @ TFL. Reloading Clubs: SF, East Bay Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA). |
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-Michael Alan Weiner |
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Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.
Edit: One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session. Erik. Last edited by Window_Seat; 08-24-2013 at 1:40 PM.. |
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The court must follow binding case law and authority, but can dismiss persuasive authority without comment or consideration.
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It doesn't matter how scary, ugly, uncomfortable, or inconvenient self defense can be. Like it or not, you will never, ever be relieved of your duty and responsibility to defend your life, your family, your country and your freedom. How much ammo do I need? Enough to last me the rest of my life, and then lot more for later. The government does not come knocking at your door. It comes knocking down your door. |
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Because the case doesn't add any useful jurisprudence in the eyes of the panel. In Mehl, the case went away for administrative reasons (didn't complete application, etc.) that were unrelated to the 2A issues raised.
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I'm starting to wonder at this point if Peruta, Richards & Baker are being delayed pending the Mehl en banc reconsideration decision. Erik. |
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"In the Ninth Circuit, we begin our inquiry by looking to binding precedent. See Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). If the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end. On the other hand, when ‘‘there are relatively few cases on point, and none of them are binding,’’ we may inquire whether the Ninth Circuit or Supreme Court, at the time the out-of-circuit opinions were rendered, would have reached the same results. See id. at 1515." But Boyd doesn't tell us that cases which look to unpublished authority must be rendered unpublished, correct? The Supreme Court talks about their own precedent "ha[ving] direct application in a case, yet appear[ing] to rest on reasons rejected in some other line of decisions", and how "the Court of Appeals should follow the case which directly controls," (Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)), but I think that this was an admonition to the lower courts from the Supreme Court that thou shalt not tinker with long standing Supreme Court precedent, even if it has no stare decisis effect before any court, which is probably why the Boyd Court didn't mention Rodriguez for that purpose, no? Anyone care to chime in on that one? I've been kinda interested in that part of case law lately. Erik. Last edited by Window_Seat; 08-26-2013 at 5:59 PM.. |
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Whenever they feel like it
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18. How long does it take from the time of argument to the time of decision? The Court has no time limit, but most cases are decided within 3 months to a year.
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I always cheer up immensely if an attack is particularly wounding because I think, well, if they attack one personally, it means they have not a single political argument left. Margaret Thatcher |
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I don't think 2013 is going to be the year. Hopefully the first half of 2014 will be fruitful, since we are looking at 3 cases together.
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I hate people that are full of hate. It's not illegal to tip for PPT! |
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I think its partially what Erik said and I think the Ninth Circuit is waiting to see whether Drake is granted cert. If so they will hold off on rendering a decision in the three cases. Its been eight months since arguments I doubt that its going to be much longer if Drake cert is denied. I am merely speculating. There have been a lot of 28j letters filed by both parties in Baker. Every case in the country has been good for us. Most recently the Mass. Supreme Court issued a decision I filed which is just spot on. This is the 28j notice and the attached case.
http://www.scribd.com/doc/160149338/Filed-Simkin-Notice As to citing unpublished sources. I am horrible at citations but the way you tell the court a decision is unpublished is simply by how you do the citation this is just a example Holder, 342 F. App’x 907, 908-09 (4th Cir. 2009) that is unpublished this is published Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 544 (9th Cir. 2004) You really should not cite to unpublished cases unless you literally have nothing else to cite to. They do not have a lot of value especially if they are from another jurisdiction. The reason cases are not published is the Court thinks the case was poorly done and does not want it as precedent or the case is not very important. Last edited by wolfwood; 08-31-2013 at 2:05 PM.. |
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Either way, could SCOTUS tell the 9th not to hold off, to come to a decision in Peruta-Richards-Baker because they want the benefit of the opinion of the 9th before deciding Drake? That's what I'm hoping for. Could Alan word his brief in such a way that he raises this issue (basically suggest to SCOTUS that they "ask" the 9th to come to a conclusion ASAP for the benefit of SCOTUS)?
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240+ examples of CCWs Saving Lives. Last edited by Paladin; 09-01-2013 at 7:26 AM.. |
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My understanding is SCOTUS can not order that and I don't know of a situation where they've even asked a Circuit panel to render a opinion before it was ready. |
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IIRC, all lower fed cts are creations of SCOTUS, just the way that all local gov'ts are creations of a state. Maybe they could even say we'd like that opinion by 2014 Jan 01. That way both sides could deal w/any new arguments the 9th raised, if any, in supplemental briefs and in oral arguments. I mean, its not like the judges on the 9th never had a due date for an assignment before.... It's just telling them, this is an important issue that we, SCOTUS, are going to deal w/so we'd like your input in a timely manner, esp since this is a FUNDAMENTAL and ENUMERATED right we're dealing with. Make writing an opinion in this case a high, or even your highest, priority. Has SCOTUS has faced this situation before? If so, any Con. law experts here know what happened then?
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240+ examples of CCWs Saving Lives. Last edited by Paladin; 09-01-2013 at 5:36 PM.. |
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Article III Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.So while the Supreme Court has the final judicial say, the lower courts are in fact, creatures of the legislature.
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Listings of the Current 2A Cases, over at the Firing Line. |
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Do you know if SCOTUS can request the 9th to release their opinion in time for SCOTUS to review it this term in re. Woollard?
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240+ examples of CCWs Saving Lives. |
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I meant to talk about Woollard which Gura has already requested cert. for.
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240+ examples of CCWs Saving Lives. |
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Neither Woollard or Drake would have no impact on what the 9th does, and more likely the reverse. Scotus will deny both and wait for the 9th to complete their work to get a comprehensive opinion addressing all of the Circuits. Circuit Courts are independent courts' of final determination. There is no appellate right beyond their decision other than a request for cert.
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Proud CGN Contributor USMC Pistol Team Alumni - Distinguished Pistol Shot Owner of multiple Constitutionally protected tools |
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Already denied by a vote of 8-4. Clock is ticking on a cert petition.
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Somehow, I don't think they'll wait until the last minute to decide whether to ask for cert or not....
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240+ examples of CCWs Saving Lives. Last edited by Paladin; 09-04-2013 at 8:07 AM.. |
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Agreed. If they take the whole 90 days, add in the guaranteed "I need more time!", and you may find yourself waiting until NEXT term (2014-2015).
They can probably wait until SCOTUS decides on Woollard and stay in this term. |
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__________________
Nationwide Master List of Current 2A Cases, courtesy of Al Norris @ TFL. Reloading Clubs: SF, East Bay Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA). |
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FRAP 28(j) authority by Appellees
FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert.
I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here. Erik. Last edited by Window_Seat; 11-14-2013 at 10:25 PM.. |
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Lawyer, but not your lawyer. Posts aren't legal advice. |
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I would note that they should have attached the decision and there is not much point in filing one since the government's attorney in Baker already filed a 28j letter regarding Drake. Last edited by wolfwood; 11-15-2013 at 6:27 AM.. |
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Very truly yours belongs in a love letter! You lose cool points if you do that :P. Clearly, no man card exists if you are signing letters like this!
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Lawyer, but not your lawyer. Posts aren't legal advice. |
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My elementary school teachers would address their signatures with "very truly yours" when there was a letter to my parents, which would have resulted in certain punishment.
Erik. Last edited by Window_Seat; 11-16-2013 at 10:07 PM.. |
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In Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, 271 Cal.Rptr. 513, the court found that a lawyer's conduct in failing to address adverse controlling authority and instead persisting in citing to an unpublished case, despite knowledge of these defects, warranted sanctions. Nevertheless, the court could not (and did not) point to the CRPC in support of its order to impose sanctions; rather, the Court first attempted to find that the lawyer had violated a local court rule governing the form of briefs. The court then "rejected these options because the violations in issue here involve more than the mere form of the brief." Id. at 886. The Court proceeded to order "a more severe sanction than those set forth in California Rules of Court, rule 18," though its struggle to find authority for such sanctions is apparent in the decision. Id.Best regards. |
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A notion that doesn’t fool anyone.
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Matthew D. Van Norman Dancing Giant Sales | Licensed Firearms Dealer | Rainier, WA |
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