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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 08-17-2016, 1:57 PM
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Default Flanagan v. Harris (2/24: Dismissed v LASD, dismissed in part v CA)

BREAKING: CRPA FILES NRA SUPPORTED LAWSUIT CHALLENGING CALIFORNIA’S BAN ON PUBLICLY CARRYING FIREARMS

On August 17th, the California Rifle & Pistol Association and several individuals, with the support of the National Rifle Association, filed a lawsuit in federal court challenging state and local restrictions on carrying a firearm for self-defense in public. Both California Attorney General Kamala Harris and Los Angeles Sheriff James McDonnell are named as defendants because, between California law and the Sheriff’s local policy, law-abiding residents of Los Angeles County have no meaningful way to exercise their fundamental right to bear arms.

The new lawsuit, titled Flanagan v. Harris, is a direct response to the 11-judge “en banc” panel decision in another NRA/CRPA supported case, Peruta v. County of San Diego. In Peruta, the plaintiffs argued that the Second Amendment protects the right to carry a firearm for self-defense in public. Because California prohibits open carry, the Plaintiffs argued that the Sheriff’s restrictive policy that denies concealed carry licenses to most law-abiding citizens violates the Second Amendment. A 3-judge panel of the Ninth Circuit agreed, issuing a ruling declaring the Sheriff’s restrictive “good cause” policy unconstitutional.

Despite this historic ruling, the Ninth Circuit took the rare step of deciding, on its own accord, to have the case reheard by an en banc panel. That larger panel found no Second Amendment violation in denying concealed carry licenses because, in its view, there is no specific constitutional right to carry a concealed firearm in public. Of course, that claim was never made by the Peruta plaintiffs, which is why they asked for a rehearing of that decision by the entire Ninth Circuit. The request for full court rehearing explained that the en banc majority decision conflicts with precedent requiring constitutional challenges to be viewed in the full context of the government’s burden on a constitutional right. Here, however, the en banc panel failed to view the denial of carry permits in the broader context of California’s regulatory scheme that requires residents to carry concealed. As a result of its constrained view of the right to bear arms, the en banc majority suggests that open carry may be the only manner of carrying a firearm that is protected under the Second Amendment. On August 15, 2016, the Ninth Circuit declined to have the case reheard by the full court..

The en banc decision in Peruta sets the stage for Flannigan v. Harris, which challenges California’s open carry laws in addition to state and local restrictions that deny concealed carry licenses to law-abiding citizens. The case seeks to affirm what the United States Supreme Court instructed in District of Columbia v. Heller—that the Second Amendment guarantees the individual right of responsible, law-abiding citizens to keep and bear arms, i.e., to publicly carry a firearm for self-defense.

As explained in the new lawsuit, “the Supreme Court has made clear that the right to bear arms cannot be completely foreclosed.” Because California law prohibits the plaintiffs and other law-abiding citizens from openly carrying a firearm, and because Defendant McDonnell denies them the only lawful means of carrying a concealed firearm, they are “completely barred from exercising their right to bear arms—in any manner.” The court will have to answer, once and for all, whether the Second Amendment protects the right of law-abiding citizens to carry a firearm for self-defense and, if so, which carry restrictions must be stricken.

To help this lawsuit succeed, you can send a donation directly through the California Rifle and Pistol Association Foundation’s website here.
All donations will go directly towards funding this lawsuit.



Please help CRPA fight for your right to choose to own a gun for sport, or to defend yourself and your family. CRPA and NRA work closely together in California to fight for you in Sacramento, in cities and counties across the state, in regulatory agencies, and in the courts. Even with the generous rates that our team of civil rights attorneys, legislative advocates, experts and consultants grant us, these ongoing efforts are still expensive. You can support our pro-Second Amendment efforts in California by donating to The California Rifle & Pistol Association Foundation (CRPAF). CRPAF is a 501(c)(3), so contributions to CRPAF are tax-deductible. Or donate to NRA Legal Action Project. All donations will be spent to specifically benefit California gun owners.

For a summary of some of the many actions the CRPA and NRA has taken on behalf of California gun owners, click here.

About CRPA & CRPAF
The California Rifle & Pistol Association (CRPA), founded in 1875, is a nonprofit 501 (c)(4) membership and donor supported organization. CRPA employs staff in Fullerton and Sacramento, works with hundreds of volunteers across the state, and is controlled by an independent Board of Directors. Some of CRPA’s non-profit efforts are funded through CRPA’s sister organization, the CRPA Foundation (CRPAF). CRPAF is a 501(c)(3) organization, so contributions to the CRPAF are tax deductible.

All dues and donations to CRPA and CRPAF are spent to specifically benefit California gun owners. CRPA works relentlessly in California to defend your constitutional right to keep and bear arms. Your CRPA membership dues and donations help CRPA to fight for your right to choose to responsibly own and use firearms for hunting, sport, or to defend yourself and your family.

CRPA has tens of thousands of members who represent a diverse cross-section of the general public. CRPA members include civil rights activists, competitive and recreational shooters, hunters, youth, women, police, firearm experts and trainers, and loving parents.

CRPA is proud to be the official state association of the National Rifle Association (NRA). CRPA works with the NRA as a team in California. CRPA and NRA complement and enhance each other’s ongoing efforts to fight for your rights in Sacramento, in cities and counties across the state, in regulatory agencieas, and in the courts. By working together, CRPA and NRA multiply their effectiveness, accomplishing more by working together on your behalf than either could accomplish working alone or separately in California.


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Last edited by Kestryll; 08-17-2016 at 3:01 PM..
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Old 08-17-2016, 3:19 PM
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Great, wonderful, it's Peruta II.

As a draft it's fine but they forgot something before they finalized it and filed the complaint. And, it's a BIG something. This is California. The State where Federal law and the US Constitution mean NOTHING!

However, the California Constitution still means something. So the complaint should have referenced the Ca Const. Art I Sec. 1. To wit:

Quote:
All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety
, happiness, and privacy.
Emphasis added.

An argument could be made that, under the Ca Const., self defense is sufficient good cause to carry a firearm in public. But, did the wiz kids include that? Defending life, protecting property and obtaining safety are inalienable rights of ALL PEOPLE. So where's that argument? No where.

Did they at least mention Art. III, Sec. 1? An argument could be made to support the halfway stated argument they did make that Ca has to obey the US Const. including the 2a.

Quote:
The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.
But, did they? Uh, noooo. Just like they failed to do so in Peruta.

Honestly, some people just can't get enough failure in their lives.
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Last edited by rplaw; 08-17-2016 at 3:29 PM..
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Old 08-17-2016, 3:25 PM
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Donation time

This needs to win.
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Old 08-17-2016, 3:42 PM
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Originally Posted by rplaw View Post
Great, wonderful, it's Peruta II.

As a draft it's fine but they forgot something before they finalized it and filed the complaint. And, it's a BIG something. This is California. The State where Federal law and the US Constitution mean NOTHING!

However, the California Constitution still means something. So the complaint should have referenced the Ca Const. Art I Sec. 1. To wit:

Emphasis added.

An argument could be made that, under the Ca Const., self defense is sufficient good cause to carry a firearm in public. But, did the wiz kids include that? Defending life, protecting property and obtaining safety are inalienable rights of ALL PEOPLE. So where's that argument? No where.

Did they at least mention Art. III, Sec. 1? An argument could be made to support the halfway stated argument they did make that Ca has to obey the US Const. including the 2a.



But, did they? Uh, noooo. Just like they failed to do so in Peruta.

Honestly, some people just can't get enough failure in their lives.
So, I take it you'll be spending more time sitting around complaining and not supporting the effort then.

Okay, it's a free country (sort of)
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Old 08-17-2016, 3:51 PM
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Old 08-17-2016, 4:37 PM
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Originally Posted by Kestryll View Post
So, I take it you'll be spending more time sitting around complaining and not supporting the effort then.

Okay, it's a free country (sort of)
Ok, I get it. You're on board with this to the point you take criticism of it personally. You're entitled to do that. No problems. We're good.

The issue I have with it, is that it's amateur hour all over again. These people get paid big bucks to do this, yet they can't seem to make a simple and cogent argument which encompasses the ACTUAL issue.

One has to wonder why? Clearly the argument I illustrated above can be included into this complaint without cluttering the field. Nor is this obscure law. Nor is is a stretching of established precedent. It clearly applies to the facts and is an inalienable Right under the California Const. So where is it in the complaint?

As for support, I'll support the effort. But I won't waste my time trying to spin it into something is clearly isn't. What it isn't, is a winner. It's a rehash of Peruta that will get dismissed based on the precedent in Peruta and we will lose (again) at the appellate level.

Did the attorneys who drafted this not read Peruta? There is no Constitutional Right to carry a concealed weapon in public. Period. End of game. You lose. Why in the world would someone file a complaint seeking an injunction against prohibiting either concealed carry or open carry under the US Constitution KNOWING that CC is not a Right?

Did they not learn about the 1/2-step process where the courts will NOT address the OC case if it's a companion to a case with a CC issue within it?

As for filing only for an injunction against OC, one word; Nichols. Already there, already doing that. Then there's Baker in Hawaii regarding their OC ban. And, Norman is on track to SCOTUS for OC in Fla and likely to get there soon. So what's the point of this case again?

Were I on the bench and this case was assigned to me, I'd seriously be thinking about an OSC re: sanctions for filing a frivolous complaint. I probably wouldn't do it, but I'd be thinking about it. You can bet the State will be thinking along those lines too.
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Old 08-17-2016, 4:45 PM
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Honestly, some people just can't get enough failure in their lives.
We’re going to fail. We’re going to fail so much. We’re going to fail at carry, we’re going to fail at the AW ban. We’re going to fail so much, you’re going to be so sick and tired of failing, you’re going to come to me and go ‘Please, please, we can’t fail anymore.’ You’ve heard this one. You’ll say ‘Please, Mr. Board Member, we beg you sir, we don’t want to fail anymore. It’s too much. It’s not fair to everybody else.’” CGF said. “And I’m going to say ‘I’m sorry, but we’re going to keep failing, failing, failing, We’re going to make California great again.”
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Old 08-17-2016, 4:46 PM
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Rp, your post above is really nonsensical and hysterical.

If we cannot win on federal constitution 2 Am grounds, then no federal court is going to give you a win on some vague statement in the state constitution that has not been interpreted to grant any rights to possess or own firearms.

The idea that the complaint is deficient for not including that is truly nutty, and the idea that the complaint as filed is sanctionable is absurd.

El Gato
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Old 08-17-2016, 5:01 PM
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Originally Posted by rplaw View Post
The issue I have with it, is that it's amateur hour all over again.
The same amateurs who won a 2A case in the 9th circuit with Peruta I? The ones who forced K. Harris to dance with the whole en banc thing?

No one's taking you personally. They just think you're wrong.
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Old 08-17-2016, 5:08 PM
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Rp, your post above is really nonsensical and hysterical.

If we cannot win on federal constitution 2 Am grounds, then no federal court is going to give you a win on some vague statement in the state constitution that has not been interpreted to grant any rights to possess or own firearms.

The idea that the complaint is deficient for not including that is truly nutty, and the idea that the complaint as filed is sanctionable is absurd.

El Gato
Short response;

Peruta says there is no Right to CC under the US Const. in the 9th Circuit. So, under Peruta, the FEDERAL LAW DOESN'T APPLY.

However, the STATE CONSTITUTION certainly DOES apply IN THIS STATE. You think the 9th can somehow say that "defending life" means something other than self defense? You think they can weasel out of "protecting property" and "obtaining safety" by saying those INALIENABLE RIGHTS mean you can only call 911?

As for wining only on Federal Constitutional grounds; Peruta tried that. And lost. It's time for a different strategy.

As for the rest:

Cal Code of Prof Conduct Rule 3.200(b); Bus & Prof Code 6068(c); and Cal Code of Civ Proc Sec 128.5(b)(2). I don't know if this complaint meets the threshold but it's close. There is little, if any, merit in this filing.
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Old 08-17-2016, 5:19 PM
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Originally Posted by rplaw View Post
As for support, I'll support the effort. But I won't waste my time trying to spin it into something is clearly isn't. What it isn't, is a winner. It's a rehash of Peruta that will get dismissed based on the precedent in Peruta and we will lose (again) at the appellate level.

Did the attorneys who drafted this not read Peruta? There is no Constitutional Right to carry a concealed weapon in public. Period. End of game. You lose. Why in the world would someone file a complaint seeking an injunction against prohibiting either concealed carry or open carry under the US Constitution KNOWING that CC is not a Right?
7 of the complaint clearly distinguishes the instant case from Peruta, arguing that the myopic view of the en banc panel failed to take into account that while the Constitution does not explicitly guarantee a right to concealed carry, it effectively precludes the 2A right to bear as defined by McDonald, as neither OC or CC are available as a result of the decision.
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Old 08-17-2016, 5:24 PM
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Thanks for the laughs lol. Suing the California AG, asking a federal court to interpret the state Constitution, see any complications there?
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Old 08-17-2016, 5:30 PM
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Originally Posted by rplaw View Post
You think the 9th can somehow say that "defending life" means something other than self defense? You think they can weasel out of "protecting property" and "obtaining safety" by saying those INALIENABLE RIGHTS mean you can only call 911?
"Certainly they don't mean you only call 911!', says the court, "You are absolutely free to protect yourself, your property, and obtain safety with the firearm you keep safely locked away in a safe at your home."

I'm sorry if I'm coming across as flip. We're all on the same side here.
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Old 08-17-2016, 5:31 PM
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Old 08-17-2016, 5:37 PM
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7 of the complaint clearly distinguishes the instant case from Peruta, arguing that the myopic view of the en banc panel failed to take into account that while the Constitution does not explicitly guarantee a right to concealed carry, it effectively precludes the 2A right to bear as defined by McDonald, as neither OC or CC are available as a result of the decision.
Which was EXACTLY the issue in Peruta. Read the Appellants opening brief:

http://michellawyers.com/guncasetrac...rutavsandiego/

You don't even have to read the entire brief, just read the table of contents for the arguments and issues presented. Notice how they nearly mirror those in this case? Funny how Peruta requested relief under 48 USC 1983 and 1998, JUST LIKE FLANAGAN DOES. Yet a different outcome is expected in this case? Really?
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Old 08-17-2016, 5:39 PM
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Thanks for the laughs lol. Suing the California AG, asking a federal court to interpret the state Constitution, see any complications there?
This is the role of the Fed courts. They do this all the time. I point to the gay marriage fiasco as evidence.

Anyway, enough. I'm out of anymore time for this discussion. KC can come in and take over now.
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Old 08-17-2016, 5:42 PM
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Mr Rplaw
You are very smart.
Why are you not communicating with CRPA with your issues?
If you are communicating with CRPA, I commend you.
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Old 08-17-2016, 5:49 PM
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This is the role of the Fed courts. They do this all the time. I point to the gay marriage fiasco as evidence.

Anyway, enough. I'm out of anymore time for this discussion. KC can come in and take over now.
Too bad, it was just getting fun!

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“A federal court[]” may not “grant” injunctive “relief against state officials on the basis of state law,” when those officials are sued in their official capacity. Pennhurst, 465 U.S. at 106; see Pena v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992) (per curiam).
Duh. lol.
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Old 08-17-2016, 5:51 PM
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Which was EXACTLY the issue in Peruta. Read the Appellants opening brief:

http://michellawyers.com/guncasetrac...rutavsandiego/

You don't even have to read the entire brief, just read the table of contents for the arguments and issues presented. Notice how they nearly mirror those in this case? Funny how Peruta requested relief under 48 USC 1983 and 1998, JUST LIKE FLANAGAN DOES. Yet a different outcome is expected in this case? Really?
Peruta attempted to erode the adequacy of the defendant's "good cause" requirements, while the instant case illustrates the problem with the Peruta decision. The issues are mutually exclusive. The arguments will have similarities, but the objective is basically to back the court into a corner with its own reasoning. All you have to do is read the complaint.
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Old 08-17-2016, 5:53 PM
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Mr Rplaw
You are very smart.
Well, let's not jump to conclusions just yet.
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Old 08-17-2016, 6:02 PM
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Thanks for the laughs lol. Suing the California AG, asking a federal court to interpret the state Constitution, see any complications there?
This


Quote:
Originally Posted by Elgatodeacero View Post
Rp, your post above is really nonsensical and hysterical.

If we cannot win on federal constitution 2 Am grounds, then no federal court is going to give you a win on some vague statement in the state constitution that has not been interpreted to grant any rights to possess or own firearms.

The idea that the complaint is deficient for not including that is truly nutty, and the idea that the complaint as filed is sanctionable is absurd.

El Gato
And this
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Old 08-17-2016, 6:08 PM
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Originally Posted by rplaw View Post
Great, wonderful, it's Peruta II.

As a draft it's fine but they forgot something before they finalized it and filed the complaint. And, it's a BIG something. This is California. The State where Federal law and the US Constitution mean NOTHING!

However, the California Constitution still means something. So the complaint should have referenced the Ca Const. Art I Sec. 1. To wit:

Emphasis added.

An argument could be made that, under the Ca Const., self defense is sufficient good cause to carry a firearm in public. But, did the wiz kids include that? Defending life, protecting property and obtaining safety are inalienable rights of ALL PEOPLE. So where's that argument? No where.

Did they at least mention Art. III, Sec. 1? An argument could be made to support the halfway stated argument they did make that Ca has to obey the US Const. including the 2a.



But, did they? Uh, noooo. Just like they failed to do so in Peruta.

Honestly, some people just can't get enough failure in their lives.
This wouldn't be a matter for the federal court, but for the state court though. And the odds are even worse in state courts, not to mention thatit would have to be a separate lawsuit.
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Old 08-17-2016, 6:23 PM
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Ok, I get it. You're on board with this to the point you take criticism of it personally. You're entitled to do that. No problems. We're good.
Personally? No, not at all.

I am rather amused and frankly a little tired of seeing people deride groups like the NRA and CRPA for 'not doing anything' or complaining 'why isn't someone fighting this!'
Then when these groups do something they are usually the same one that then complain that 'you're not doing it right!'.


The only comments I have any concerns about are the ones raised by FABIO because while I may not necessarily agree with his views and hope he is wrong he has established a decent track record here with his concerns.

I also very much doubt that this was brought without looking in to fed vs state issue and would guess there is a path forward for this that is not entirely obvious.
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Old 08-17-2016, 6:39 PM
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The only comments I have any concerns about are the ones raised by FABIO because while I may not necessarily agree with his views and hope he is wrong he has established a decent track record here with his concerns.
Just to be clear, what I'm saying is that rplaw is deriding CRPA for not alleging a claim for violation of state law, but if that claim were alleged, it would get tossed out because it violates the 11th amendment.

"one has to wonder why". clueless lol.
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Old 08-17-2016, 6:44 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Just to be clear, what I'm saying is that rplaw is deriding CRPA for not alleging a claim for violation of state law, but if that claim were alleged, it would get tossed out because it violates the 11th amendment.

"one has to wonder why". clueless lol.
Okay, I wasn't meaning to misrepresent what you were saying.

I haven't read the entire filing yet and I'm reading this quickly on a phone so sometimes things slip by or get misread.
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Old 08-17-2016, 7:14 PM
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So if Fabio is right often, or not, .... What does it it take to get Fabio on board ??? Don't personally know Kes or anyone or Fabio. Just saying...
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Old 08-17-2016, 7:19 PM
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Okay, I wasn't meaning to misrepresent what you were saying.

I haven't read the entire filing yet and I'm reading this quickly on a phone so sometimes things slip by or get misread.
It generally is a good course of action to assume Fabio is making fun of you or denigrating you if you're trying to do something big.

As for what it takes to get Fabio to help... I don't think he'd ever get on board at this point
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Old 08-17-2016, 7:20 PM
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Old 08-17-2016, 7:38 PM
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Can someone please remind me to check the status of this case in 7 years
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Old 08-17-2016, 9:02 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Thanks for the laughs lol. Suing the California AG, asking a federal court to interpret the state Constitution, see any complications there?
Pennhurst v Halderman would toss you

However couldn't you get the federal court to certify the question to the CA Supreme Court?

Why not? I've never tried it I am just asking.
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Old 08-17-2016, 9:13 PM
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Pennhurst v Halderman would toss you

However couldn't you get the federal court to certify the question to the CA Supreme Court?

Why not? I've never tried it I am just asking.
If the federal court isn't going to decide the state law claim, it's not going to certify the question, it's going to dismiss the claim.
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Old 08-17-2016, 10:07 PM
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I'm glad to see C.D./CRPA/NRA not wasting any time responding to the Peruta en banc decision.

But I'm guessing this case will take 1.5 - 2 years at trial court level and another 1.5 - 2 years at the 3 judge panel level of CA9. So, in 3 - 4 years -- 2019 - 2020 -- after we get the 3 judge decision and are waiting to see if it will get reheard or reheard en banc is when I'll start watching it.

At that point it may still have en banc, full court en banc and SCOTUS appeals ahead of it: 2023 - 2026 ....

For the immediate future, help The Donald win!
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Old 08-17-2016, 10:39 PM
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Reading the complaint now. IANAL, but going on how the writing sounds, it sounds a lot more forceful that the Peruta briefs. It sounds more exasperated too, which is perfectly reasonable after all these years of litigation.

It seemed like Peruta was trying to be too clever for its own good, by claiming to be an as-applied challenge, and not including the state as a defendant. This case is much more blunt and does not try to claim that it's not challenging a statute.

I have some hope for this!
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Old 08-18-2016, 12:14 AM
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They are getting some heat for including concealed carry in the complaint, but I think they wrote it this way to avoid another snarky ruling from the 9th. If they didn't mention all forms of carry, there is a good chance we would get a ruling from the 9th (in 7-10 years) saying something to the effect of "You have a right to carry, but not a guaranteed right to open carry. Maybe if open carry is banned, you have a right to concealed carry, but nobody asked us about that so we aren't going to rule on it."
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Old 08-18-2016, 7:38 AM
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I applaud CRPA and wish them luck. But I no longer have any faith whatsoever that the Federal Courts will protect our 2nd Amendment rights.

Californians are at the total mercy of the anti-gun Democratic Party dominated legislature.
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Old 08-18-2016, 10:48 AM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Too bad, it was just getting fun!



Duh. lol.
Ok, Ok, I get it. I jumped ahead of myself thinking plaintiff's choice of forum under 1983.

So, the question becomes why not bring suit in State Ct? You think the State can ignore the State Const? If the decision is wrong, then appeal at the Federal level. This gives a shot at a different court which may arrive at a different decision. If the decision is still skewed against civil rights, the appellate process is the same with the same number of steps to SCOTUS. Better, if the decision is favorable, the it becomes the State's obligation to whine to the Feds about how their own judicial system told them they were discriminating.

A different, maybe not so biased, justice system could be a good thing. Not that I'm saying it is, but you never know. We DO KNOW the 9th hates gun rights.

As for backing them into a corner, Peruta tried that. They simply skipped the part about being in a corner and ignored the other argument about there being no other viable option to bear arms. You think hitting them with this exact same dance will change their minds?
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Old 08-18-2016, 12:19 PM
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Sure, Ill give money, I'll call and email our overlords, I mean law makers... I couldn't look at myself in the mirror if I didn't. However, I think it's naive to believe that the process in CA and under the 9th isn't completely decided already. There is an agenda and it's playing out perfectly. IMHO.

I'm willing to draw out the "legal fight" until we have truly exhausted all alternatives.

Then it's an appeal to heaven.
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Old 08-18-2016, 1:27 PM
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So this starts at district court?... forgive me if it's a silly question!
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Old 08-18-2016, 2:06 PM
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Originally Posted by stag6.8 View Post
So this starts at district court?... forgive me if it's a silly question!
Yes - UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION - https://www.cacd.uscourts.gov/locations

Los Angeles has 2 locations for 'Western'. These are trial courts.
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Old 08-18-2016, 2:06 PM
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As for backing them into a corner, Peruta tried that. They simply skipped the part about being in a corner and ignored the other argument about there being no other viable option to bear arms. You think hitting them with this exact same dance will change their minds?
At the end of the day they can do anything they want to uphold CA's carry ban, but I'm curious how you think it would play out for this case. The argument is basically that SCOTUS says there is a right to carry. Open carry is illegal, and it is impossible to get a license to conceal carry. How can people carry? Maybe they will say open carry is legal in rural areas and that is good enough?
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