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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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  #1  
Old 02-23-2017, 7:28 PM
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Default Doe, et al. v. AG Becerra et al : Cal 3rd App; regs v COE & C&R & 1-in-30: WIN 2/8/18

https://d3n8a8pro7vhmx.cloudfront.ne...pdf?1487897338

Appeal from the Superior Court for the County of Sacramento, Case No. 34-2014-00163821

Quote:
ARGUMENT
The State did not dispute below that the new enforcement policy announced in May 2014 constitutes a “regulation” under the Administrative Procedure Act, Gov. Code section 11340 et seq. (the “APA”), and it plainly is one as shown below. Thus, for the remainder of this brief, we refer to the new enforcement policy as the “New Regulation.” The State argued that the APA does not apply here because the New Regulation constitutes the “only legally tenable interpretation” of the exemption. Id. § 11340.9(f). This despite the fact that the New Regulation constitutes a complete reversal of DOJ’s longheld prior interpretation of the statute.

DOJ’s original interpretation of the law was correct, and its new interpretation is not. If, however, the Court decides the law is at least susceptible to DOJ’s new interpretation, the Court should acknowledge that the New Regulation is an underground regulation, and strike it down on that basis.
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Old 02-23-2017, 8:21 PM
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In for discussion - Can we use this as a vehicle to get an injunction on the whole BBAW thing??
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Old 03-02-2017, 1:08 PM
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After a bit of cooling off period in my spam folder, I got the email from CGF about this. The lede in email was about the Cal DOJ just making up the law as it goes.

Fine.

I could not help but consider how this parallels the early pre-Pena work that I did with the DOF and AG. Eventually the AG's office told me phone 'That is how we interpret it'. They interpreted the law to mean exactly the opposite of the actual text of the law.

How is this long-standing, ongoing behavior not a conspiracy to deny civil rights to law-abiding gun owners? Is it possible to construe the long-standing and ongoing action of the AG/DOJ/DOF as anything else?
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Old 03-03-2017, 11:42 PM
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It absolutely is. And given the State's track record of animus towards basic rights (successful lawsuits by school children to get a decent education, prisoners for violations of their most basic rights, even some of the successful State Court rulings against egregious **** like the ammo ban) this State has made no secret of its animus.
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Old 02-08-2018, 1:19 PM
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Win at the appeals court

https://d3n8a8pro7vhmx.cloudfront.ne...pdf?1518117431
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Old 02-08-2018, 1:54 PM
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Quote:
Originally Posted by wolfwood View Post
It's nice to see a win, and the appeals court even made clear that they can't just go promulgate new regulations and get to the same result:

We agree with plaintiffs and address their arguments in reverse order. Regarding their second argument, we conclude DOJ’s policy is not exempt from being promulgated under the APA because it does not embody “the only legally tenable interpretation” of the statute. (Gov. Code, § 11340.9, subd. (f).) Having decided that DOJ’s 2014 interpretation of section 27535 is void for failure to comply with the APA, we resolve any ambiguity regarding the proper construction of the statute and construe it as allowing individuals with the designated federal license, and certificate of eligibility, to purchase more than one handgun within 30 days regardless of the type of handgun being purchased. In doing so, we agree with plaintiffs’ first argument as well.

That said... how long before the CA legislature also "resolves any ambiguity" by changing the penal code to not allow this...
it's nice to get even a temporary win, but this won't last long.
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Old 02-08-2018, 2:04 PM
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A bill to "close" this "loophole" in the law proposed in 3...2...1....
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Old 02-08-2018, 2:15 PM
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A bill to "close" this "loophole" in the law proposed in 3...2...1....
I'm going to say that doesn't happen in the wake of it being the same requirment left open for ammo sales from the internet.
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Old 02-08-2018, 6:17 PM
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This is a good win, but how many forms of ID do I need to exercise a right? I'm sick and tired of having to beg for permission.
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Old 02-08-2018, 6:32 PM
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I'm a C&R and COE holder and my first reaction is positive. But celebration by "those who got 'em" should be tempered by the thought that any law abiding gunowner in CA ought to have that same ability.
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Old 02-08-2018, 6:34 PM
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They accomplished their goal of stifling multiple SSE purchases by 03 w/COE. They knew it would take years to resolve this, and in the mean time the SSE option was legislated away.

I will still go out and buy a couple of nice new revolvers on the same day though, just as soon as we get the green light.

And maybe this means there is hope for overturning DOJs bogus BB interpretation with the new AW registrations.
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Old 02-08-2018, 6:37 PM
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Originally Posted by taperxz View Post
I'm going to say that doesn't happen in the wake of it being the same requirment left open for ammo sales from the internet.
It seems to me our legislators know how to go up to the line but not obviously put their toe across it, mostly and thus far anyway. The C&R/COE "option" - much like "you can dispose of your mags out of state" allows the state to assert they're not prohibiting but rather merely strictly regulating.

I have two guns lined up each waiting for the 30 day clock to expire. I'll ask this weekend and see what the gunstore reaction is.
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Old 02-08-2018, 6:44 PM
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Originally Posted by dfletcher View Post
I have two guns lined up each waiting for the 30 day clock to expire. I'll ask this weekend and see what the gunstore reaction is.
The appeals court remanded back down to the lower court, so I don’t think anything will take effect until the lower court issues a new opinion consistent with the appellate ruling (but I’m no expert). If that is correct, expect the decision to take effect “never” because Becerra is already on the phone with dem state legislators telling them that he tried to do it the illegal way and it didn’t work out so he needs them to change the penal code.
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Old 02-08-2018, 7:11 PM
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Originally Posted by dfletcher View Post
I'm a C&R and COE holder and my first reaction is positive. But celebration by "those who got 'em" should be tempered by the thought that any law abiding gunowner in CA ought to have that same ability.
My feelings exactly. I want to see this for all CA gun owners.
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  #15  
Old 02-08-2018, 7:23 PM
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From the decision....."Plaintiffs Alvin Doe and Paul A. Gladden shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)"

Hopefully they see their money. Even if it is paid by the taxpayers.
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Old 02-08-2018, 7:43 PM
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So is this in effect immediately?
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Old 02-08-2018, 7:44 PM
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Woo hoo, my Curio & Relic FFL and Certificate of Eligibility mean that I’m exempt from the 1 handgun every thirty days limit, regardless of whether that handgun is a C&R or not! Boo hoo, there are no pistols I want on the pathetic list of guns that can be sold in CA.
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Old 02-08-2018, 8:35 PM
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Nice to win one once in a while.
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  #19  
Old 02-08-2018, 8:42 PM
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Quote:
Originally Posted by John Browning View Post
So is this in effect immediately?
No.

Court remanded the case back to the lower court for a new opinion consistent with today's ruling. That takes time.

And, one might reasonably expect DOJ to appeal.
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Old 02-08-2018, 8:53 PM
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The ruling seems a very straightforward smackdown. 3-0 against DOJ is harsh by any recent measure. I, optimistically, hope DOJ avoids the appeal and risk of it blowing up in their faces (as so many of their other "rules" followed the same sketchy path). I certainly see a "gut and amend" coming, to close this new "loophole".
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Old 02-08-2018, 11:16 PM
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Here is a link the original thread, where the superior court case was discussed:
http://calguns.net/calgunforum/showthread.php?t=935718
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Old 02-09-2018, 3:46 AM
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Big wins are almost always preceded by a series of smaller ones.

Salutations to Mr. Combs, CGF and the legal team.
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Old 02-09-2018, 1:32 PM
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As the DOJ enforcement policy was not actual law, how come the new ruling from the appeals court does not go into immediate effect to the way the law was written, to allow C&R 03 FFL with COE to be exempt from 1 in 30 day rule?
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Old 02-09-2018, 3:22 PM
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Originally Posted by scout II View Post
As the DOJ enforcement policy was not actual law, how come the new ruling from the appeals court does not go into immediate effect to the way the law was written, to allow C&R 03 FFL with COE to be exempt from 1 in 30 day rule?
Well, it is complicated. The short answer is that the opinion does not become a "final" opinion for 60 days. The first thirty days is set aside to determine any motion for reconsideration/rehearing in the court of appeal. The second thirty day period is for a party seeking review in the California Supreme Court. If nothing happens in that 60 days, an order of remand is issued and the case sent down to the lower court.
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Old 02-09-2018, 3:55 PM
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Originally Posted by dfletcher View Post
I'm a C&R and COE holder and my first reaction is positive. But celebration by "those who got 'em" should be tempered by the thought that any law abiding gunowner in CA ought to have that same ability.
There is still reason to celebrate for those who do not directly benefit from this ruling. Any time a despotic agency like the Bureau of Firearms gets spanked by a court (especially a unanimous appellate panel), it is a good thing for all of society, but especially gun owners.

Congratulations to counsel on this appeal, well done.
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Old 02-12-2018, 11:15 AM
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Default Alvin Doe, et al. v. Attorney General Xavier Becerra, et al.

https://www.calgunsfoundation.org/doe

So, if I'm reading the opinion right, someone with a C&R FFL and a COE is not limited to one handgun per 30 days. Right?
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Old 02-12-2018, 12:11 PM
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Originally Posted by Robert1234 View Post
https://www.calgunsfoundation.org/doe

So, if I'm reading the opinion right, someone with a C&R FFL and a COE is not limited to one handgun per 30 days. Right?
Yes, but see post 24, above. The court's order does not take effect immediately.
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Old 02-12-2018, 2:01 PM
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Yes, but see post 24, above. The court's order does not take effect immediately.
Nice. Thanks for the quick reply.
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Old 02-12-2018, 9:12 PM
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Originally Posted by sbrady@Michel&Associates View Post
There is still reason to celebrate for those who do not directly benefit from this ruling. Any time a despotic agency like the Bureau of Firearms gets spanked by a court (especially a unanimous appellate panel), it is a good thing for all of society, but especially gun owners.

Congratulations to counsel on this appeal, well done.
That is the real win — it tells those in the CA DOJ that they can’t legislate new rules into existence that are blatantly against the penal code. It makes them pause and rethink their next fiat. Hopefully some of the AW and other regulations implementing gunmageddon and other new laws will go the same way in court. Either way this makes those few powerful people at DOJ driving the regulations being written right now to seriously consider dialing it back a notch. The next regulation coming out might have been just a little bit worse without this having happened.
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Old 02-12-2018, 10:00 PM
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Originally Posted by thorium View Post
That is the real win — it tells those in the CA DOJ that they can’t legislate new rules into existence that are blatantly against the penal code. It makes them pause and rethink their next fiat. Hopefully some of the AW and other regulations implementing gunmageddon and other new laws will go the same way in court. Either way this makes those few powerful people at DOJ driving the regulations being written right now to seriously consider dialing it back a notch. The next regulation coming out might have been just a little bit worse without this having happened.
I certainly hope you are correct, sir. The pessimist in me says they'll just double down but I want a win for our side more than my negative opinion of DOJ will withstand.
Congratulations to the winning counsel and Mr. Doe, et al.
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Old 02-12-2018, 10:01 PM
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Quote:
Originally Posted by thorium View Post
That is the real win — it tells those in the CA DOJ that they can’t legislate new rules into existence that are blatantly against the penal code. It makes them pause and rethink their next fiat. Hopefully some of the AW and other regulations implementing gunmageddon and other new laws will go the same way in court. Either way this makes those few powerful people at DOJ driving the regulations being written right now to seriously consider dialing it back a notch. The next regulation coming out might have been just a little bit worse without this having happened.
Nothing you wrote is in any way how California legislators think and act. This is merely a slight inconvenience to them. They'll "correct" their "oversight" in the next legislative session, using this decision as a guideline for how they write future laws.
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Old 02-12-2018, 10:14 PM
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Congratulations to the winning counsel and Mr. Doe, et al.
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Old 04-12-2018, 11:32 AM
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Is this in effect yet? It's been over 60 days.
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Old 04-12-2018, 4:35 PM
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Is this in effect yet? It's been over 60 days.
Yes. Remittitur issued and the case sent back down to the trial for entry of a judgment for costs on appeal on April 10. So for our purposes, the case is final and may not be further appealed.
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Old 04-12-2018, 9:01 PM
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Thank you, but I'm really asking if I can walk into a LGS tomorrow and purchase two handguns.
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Old 04-12-2018, 9:59 PM
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Thank you, but I'm really asking if I can walk into a LGS tomorrow and purchase two handguns.
Well, I don't know, can you? I certainly can't!

"Finality" means the case is over. Finished. Done. The opinion cannot be changed. It cannot be appealed by the State or by anyone else. Finito. Over with.
It is now "the law" that the AG's interpretation was bogus. Do you need me to make it any clearer than that?
If the store balks, show them a copy of the decision.
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Old 04-13-2018, 9:33 AM
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Originally Posted by TruOil View Post
Well, I don't know, can you? I certainly can't!

"Finality" means the case is over. Finished. Done. The opinion cannot be changed. It cannot be appealed by the State or by anyone else. Finito. Over with.
It is now "the law" that the AG's interpretation was bogus. Do you need me to make it any clearer than that?
If the store balks, show them a copy of the decision.
The real entertainment will begin when the DOJ system rejects the DROS due to the 1-in-30 rule.
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Old 04-13-2018, 2:44 PM
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The real entertainment will begin when the DOJ system rejects the DROS due to the 1-in-30 rule.
Let them try. That would be a contempt of court, and I really don't think any court would be too happy with them or their attorneys if they pulled such a stunt. Becerra may be a dyed in the wool gun banner, but I really don't think he wants to be dragged personally in front of an irate judge.
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Old 04-13-2018, 4:17 PM
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The real entertainment will begin when the DOJ system rejects the DROS due to the 1-in-30 rule.
I am very curious to see how this turns out.

Certainly the DOJ has a history of ignoring black letter law when it comes to firearms issues.
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Old 04-13-2018, 4:31 PM
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Originally Posted by command_liner View Post
I am very curious to see how this turns out.

Certainly the DOJ has a history of ignoring black letter law when it comes to firearms issues.
The pessimist in me believes that they will say the system has a "bug" and then just leave it until they are forced to change it somehow.
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