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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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  #81  
Old 08-22-2016, 4:10 PM
lowimpactuser lowimpactuser is offline
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Quote:
Originally Posted by Dawgfan View Post
Is this for Open loaded Carry?
Read the suit.

The entire last few pages have been arguing over that. And after the en banc decision in Peruta, the definition of what a suit is "for" is considerably more debatable.
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  #82  
Old 08-22-2016, 6:14 PM
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Quote:
Originally Posted by lowimpactuser View Post
Read the suit.

The entire last few pages have been arguing over that. And after the en banc decision in Peruta, the definition of what a suit is "for" is considerably more debatable.
I read the suit... especially the last few pages you indicated...they are confronting the issues of BOTH CONCEALED CARRY in which L.A. county don't issue..and...open carry being banned.. both of which are unconstitutional...

The attorney s are forcing the defendant s to choose one or the other...

1. Concealed CARRY
OR
2. Loaded open carry (which is banned in Calif)
You can't have both... exactly like Illinois...
They are confronting these issues specifically at the district level and putting it directly in the sheriff's and AG's face!
Open carry at district level is what hurt the peruta case..why? Because at that time open carry was allowed..and the district judge..punted it to the 9th circuit!!...not anymore..

Last edited by stag6.8; 08-22-2016 at 7:27 PM..
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  #83  
Old 08-22-2016, 6:20 PM
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Originally Posted by stag6.8 View Post
I read the suit... especially the last few pages you indicated...they are confronting the issues of BOTH CONCEALED CARRY in which L.A. county don't issue..and...open carry being banned.. both of which are unconstitutional...

The attorney s are forcing the defendant s to choose one or the other...

1. Concealed CARRY
OR
2. Loaded open carry (which is banned on Calif)
You can't have both... exactly like Illinois...
They are confronting the open carry ban at district level and putting it directly in the sheriff's and AG's face!
I'm not a lawyer, and don't pretend to be.

However, neither Gura nor Clement/Michel/NRA/CRPA have indicated HOW the Peruta case could be turned into a case ONLY challenging Concealed, and not a comprehensive challenge, when there was some text challenging both.

So I believe categorically stating "C challenges X and Y" definitively is foolhardy. At this point, unless "C challenges X" and only X, or someone will explain how the 9th circuit could legitimately ONLY examine Concealed in the Peruta en banc, I don't think there's room for definitive statements on the topic.

I'd welcome fiddletown to explain this actually.
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  #84  
Old 08-23-2016, 6:10 AM
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Quote:
Originally Posted by stag6.8 View Post
I read the suit... especially the last few pages you indicated...they are confronting the issues of BOTH CONCEALED CARRY in which L.A. county don't issue..and...open carry being banned.. both of which are unconstitutional...

The attorney s are forcing the defendant s to choose one or the other...

1. Concealed CARRY
OR
2. Loaded open carry (which is banned in Calif)
You can't have both... exactly like Illinois...
They are confronting these issues specifically at the district level and putting it directly in the sheriff's and AG's face!
Open carry at district level is what hurt the peruta case..why? Because at that time open carry was allowed..and the district judge..punted it to the 9th circuit!!...not anymore..
Thank you
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  #85  
Old 08-23-2016, 9:29 AM
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Quote:
Originally Posted by rplaw View Post
First, your analysis of my comments misses the mark. I did NOT say that the State Const. includes a Right to bear arms.

What I SAID was that it includes a Right to DEFEND ONESELF, PROPERTY and SAFETY! I extended that argument to one where that the St. Const. includes a provision that the US Const. is the law of the land. Therefore there should be a RTKBA in order to defend oneself / property and be safe.

How are you to do that if the State "over-regulates" the tools available to the average citizen to the point they have no ability to exercise those Rights? Is that an impermissible ban through over-regulation with police powers abrogating a Right? Does unfettered 'discretion' where no one is allowed to exercise ANY of those Rights violate the St. Const.? Is there an argument about violations of our general civil rights rather than any specific Right such as the RTKBA that could win for us? (Such as: Can unfettered discretion be used to unilaterally deny Rts contained in the Const. - does any Public servant have the discretion to deny enumerated Civil Rts in the course of their duties - is there a Constitutional limit on the exercise of official discretion in the due process clause?) Did you make any of those arguments? Oops.

Further, ALL of the cases you cite are pre-McDonald. Even Kasler. Hmm, I wonder if McDonald changes the landscape as to whether the State Const. now includes a 2A Right? Maybe, maybe not, but you DIDN'T MAKE THAT ARGUMENT! Did you? Oops again.

As for the Peruta rehash, yes, this case is a rehash. The 9th may have dodged the remaining question of OC, but your new claim isn't about OC. It's about the SAME issues presented in Peruta. Exactly the same. Do you really think the same court which ignored your previous argument in Peruta is going to listen to it now? After just denying the super en banc request on those issues? Insanity. Oops #3.

So, taking your argument that the State must allow either OC or CC out of the discussion, what you're left with is OC. As I posted earlier; Baker, Nichols, and the Fla case are ahead of you. Where exactly do you find a win in this? Oops #4.

As for amateurs, there are LOTS of non-lawyers who dissected Peruta and came to the same conclusion the 9th did. Yet here we go again.

From there: I NEVER even intimated that you are doing this for big bux. The fact that you brought it up makes it seem, to me at least, that YOU are the ones pushing that line of thinking. (I'd make this another oops, but I've lost count of all the fail here.)

I'm not omnipotent. Nor do I have all the answers. I sometimes miss things that experts know. But, what I do know is that if you bring a similar claim immediately after losing the prior claim on the same issues, you risk being sanctioned. You don't get a do-over just because you don't like the prior outcome. It's a waste of judicial time and resources.

Good luck with the 12b(6) motion that's in your future. I'm crossing my fingers it isn't followed by that OSC re Sanctions I mentioned earlier. Another thing I didn't mention earlier (because I didn't think of it), is the Vextatious Litigant possibility. It's unlikely but, depending on the State's motions and argument, pushing this too hard could have you defending against that too.

The only corner I can see is the one where you're on the ropes hoping for the bell that ends the round. Time for a different strategy.
I was also going to respond to Mr Brady that Heller and McDonald changed the landscape by linking #2A to self-defense, but i see rplaw has already responded more effectively than i could.

I would just add we are not so great in number as to be able to afford bickering and taking our differences personally.

It is a fact that Mr Michel (as another poster pointed out above) has been extremely loyal and dedicated to our cause for decades. Though I don't know him personally except for meeting briefly a few times, i have known of him and his work since at least 2002 when i joined Front Sight, and i personally benefited from his pro bono assistance when i had a vexing personal issue in those early years. Didn't charge me a dime.

But a lawyer must represent his client, and it is also a fact that the NRA is biased against open carry, which it views as politically inexpedient. There is a place for the NRA and that global view. Reasonable people can disagree on tactics but we all have the same ultimate goal.

There is also a place for those of us who voice differences with the NRA, and we should not be blacklisted.
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  #86  
Old 08-23-2016, 9:38 AM
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Quote:
Originally Posted by PolishMike View Post
Can someone please remind me to check the status of this case in 7 years
Pretty much...

In fairness, not being of the Legal Expert type.. Could anyone provide some insight into when this would be heard and best estimate of ruling?
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  #87  
Old 08-23-2016, 11:48 AM
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Quote:
Originally Posted by Dawgfan View Post
Pretty much...

In fairness, not being of the Legal Expert type.. Could anyone provide some insight into when this would be heard and best estimate of ruling?
Barring miracles, trial late 2016 or early 2017, verdict about summer 2017.

One party will appeal to 9th Circuit. Oral args before the 9th about early 2018, opinion Fall of 2018 or early 2019.

Someone will demand an en banc re-hearing; if that is granted, oral args about Winter 2019 or early 2020, opinion late 2020.

Of course, courts run on their own time, so all of that could be very far off the actual event dates.
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  #88  
Old 08-23-2016, 4:21 PM
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Yesterday this case was assigned to Judge John Kronstadt.

Does anyone have any info on if he has heard 2A cases before or other info on his leanings?

Looks like he was appointed by Obama to the District bench, after being appointed to a Superior Court seat by Governor Davis:

https://en.wikipedia.org/wiki/John_A._Kronstadt

Wife is also a Superior Court judge in LA.

An old news article and bio on him:
http://www.metnews.com/articles/2010/kron111910.htm

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  #89  
Old 08-24-2016, 10:47 AM
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Originally Posted by ceedubG View Post
Yesterday this case was assigned to Judge John Kronstadt.

Does anyone have any info on if he has heard 2A cases before or other info on his leanings?
Don't we basically expect to lose at trial court? The trial court is there to establish facts but it's not going to make new interpretations of the constitution?
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  #90  
Old 08-24-2016, 4:53 PM
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Quote:
Originally Posted by ceedubG View Post
Yesterday this case was assigned to Judge John Kronstadt.

Does anyone have any info on if he has heard 2A cases before or other info on his leanings?

Looks like he was appointed by Obama to the District bench, after being appointed to a Superior Court seat by Governor Davis:

https://en.wikipedia.org/wiki/John_A._Kronstadt

Wife is also a Superior Court judge in LA.

An old news article and bio on him:
http://www.metnews.com/articles/2010/kron111910.htm

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  #91  
Old 08-24-2016, 6:39 PM
stag6.8 stag6.8 is offline
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Originally Posted by lowimpactuser View Post
You know all you need to know to guess the outcome.
But it will be interesting on how hes going to try to punt to the 9th circuit.. knowing that open carry has been banned...unlike from the judge before ...stating... unloaded open carry is a viable means of self defense...no more!!!

Last edited by stag6.8; 08-24-2016 at 7:59 PM..
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  #92  
Old 08-26-2016, 3:11 PM
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Originally Posted by stag6.8 View Post
But it will be interesting on how hes going to try to punt to the 9th circuit.. knowing that open carry has been banned...unlike from the judge before ...stating... unloaded open carry is a viable means of self defense...no more!!!
Yep, he pretty much has to say that carry isn't a right, or that the right is fulfilled because you can carry in rural areas. One thing that was interesting about the Peruta oral arguments is that both sides were treating carry as an undisputed right. It will definitely be interesting to see how they will uphold both carry bans.
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  #93  
Old 08-26-2016, 7:07 PM
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Originally Posted by pistol3 View Post
Yep, he pretty much has to say that carry isn't a right, or that the right is fulfilled because you can carry in rural areas. One thing that was interesting about the Peruta oral arguments is that both sides were treating carry as an undisputed right. It will definitely be interesting to see how they will uphold both carry bans.
Quote:
Carry is a right, as Heller said, but it is not the "core" right protected by the 2nd A ("keeping" is), and thus the right to bear arms constitutionally may be and historically has been subject to "reasonable regulations" under the inherent police powers of the state, and such regulations are subject to intermediate scrutiny since they do not infringe upon said "core" right. (Or is that "impinge" nowadays? )

If SCOTUS wants to declare the right to bear arms is also a "core" right of the 2nd A, they will have to clearly state such. So far, they have not. Therefore, we too will not make such a drastic change overturning centuries of well settled, reasonable, and common sense 2nd A jurisprudence.


That's pretty much what I expect to hear from this case, probably from both the district and the CA9 3-judge panel in Flanagan.
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  #94  
Old 08-27-2016, 5:09 AM
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It's going to turn out that concealed carry may be regulated.

The ony option in California is to target Mulford.

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  #95  
Old 08-30-2016, 12:51 PM
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Kronstadt might say there is no constitutional concealed carry right per 9th's Peruta ruling; one can still openly carry unloaded in rural areas and therefore not infringed; and there is significant state public safety concern on loaded open carry in urban areas. Case dismissed.

Last edited by KC_to_CA; 08-30-2016 at 12:57 PM..
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  #96  
Old 01-21-2017, 2:37 PM
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Are there any updates on this case?
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  #97  
Old 01-21-2017, 3:48 PM
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Originally Posted by Southwest Chuck View Post
Are there any updates on this case?
Case web site http://michellawyers.com/michelle-fl...-harris-et-al/
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  #98  
Old 02-14-2017, 4:50 PM
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http://blog.californiarighttocarry.o...-and-Order.pdf

ruling loss
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  #99  
Old 02-14-2017, 5:41 PM
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more information please
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  #100  
Old 02-15-2017, 10:17 AM
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It means the Court had a hearing a few days ago and ruled in a really short order against the people who want to carry. Later the Court will back up its short order with a much longer order.
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  #101  
Old 02-15-2017, 11:40 AM
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So the court is preparing an F U ?

Who said the courts move a glacial pace...

Last edited by randomBytes; 02-15-2017 at 11:45 AM..
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  #102  
Old 02-15-2017, 11:47 AM
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Originally Posted by randomBytes View Post
So the court is preparing an F U ?
Yeah, but they're giving each side another chance at having a final say, so they can make it look like "We haven't completely made up our minds yet. If you can point out some legal point that would counter the obvious defects of the Flanagan arguments, this is your chance. Until then, we'll hold off on publishing, er, we mean, writing, our final opinion".
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  #103  
Old 02-15-2017, 2:26 PM
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But isn't the suit still asking for CCW? Isn't that dead due to Peruta?
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  #104  
Old 02-15-2017, 3:57 PM
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more information please
Here is Charles Nichols's view.

http://newsblaze.com/business/legal/...nes-day_74482/

Please don't shoot the messenger.
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  #105  
Old 02-15-2017, 10:19 PM
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But isn't the suit still asking for CCW? Isn't that dead due to Peruta?
They are arguing a pretty narrow legal point. In Peruta all that was asked for was a concealed carry permit. Here, they are asking for some form of carry and are asking for that form of carry to be a concealed carry permit. I personally will be surprised if that argument works because it is an argument with no practical difference but what do I know.
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Old 02-16-2017, 8:53 AM
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Originally Posted by wolfwood View Post
They are arguing a pretty narrow legal point. In Peruta all that was asked for was a concealed carry permit. Here, they are asking for some form of carry and are asking for that form of carry to be a concealed carry permit. I personally will be surprised if that argument works because it is an argument with no practical difference but what do I know.
Yeah, it seems a little weird. The Ninth has determined that there is no right to carry a concealed weapon in public, thus making that option a "privilege" that may or may not be granted based upon pretty much any criteria the granting body decides is appropriate (e.g. "no issue"). Hard to imagine how a court could "force" any government agency to grant a privilege (as that contradicts the very definition of "privilege"), and Flanagan doesn't present it as a privilege anyway. But what do I know.
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  #107  
Old 02-16-2017, 9:18 AM
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Originally Posted by press1280 View Post
But isn't the suit still asking for CCW? Isn't that dead due to Peruta?
The original complaint asks for a CCW as an alternative form of relief. The primary form of relief being asked for is nullification of the open carry prohibition. Here's the original complaint: http://michellawyers.com/wp-content/..._Conformed.pdf

The relief request begins on page 19.
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  #108  
Old 02-17-2017, 9:08 AM
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Originally Posted by kcbrown View Post
The original complaint asks for a CCW as an alternative form of relief. The primary form of relief being asked for is nullification of the open carry prohibition. Here's the original complaint: http://michellawyers.com/wp-content/..._Conformed.pdf

The relief request begins on page 19.
kcbrown, care to comment?

In which paragraphs of the Complaint do the Flanagan Plaintiffs establish legal standing to challenge the California Open Carry bans? See Thomas v. Anchorage Equal Rights Com'n, 220 F. 3d 1134, 1139 - Court of Appeals, 9th Circuit (2000). Simply asking for an injunction in the Prayer for Relief section of the Complaint does not create legal standing to challenge a law.

The Flanagan Plaintiffs have not articulated any plan, let alone a concrete plan, to violate California's Open Carry bans. They've been given a deadline of May 1st to file an amended complaint. Do you really believe that they are going to get it right this time after failing in Peruta and McKay?
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Old 02-17-2017, 10:40 PM
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Originally Posted by surfgeorge View Post
kcbrown, care to comment?

In which paragraphs of the Complaint do the Flanagan Plaintiffs establish legal standing to challenge the California Open Carry bans? See Thomas v. Anchorage Equal Rights Com'n, 220 F. 3d 1134, 1139 - Court of Appeals, 9th Circuit (2000). Simply asking for an injunction in the Prayer for Relief section of the Complaint does not create legal standing to challenge a law.

The Flanagan Plaintiffs have not articulated any plan, let alone a concrete plan, to violate California's Open Carry bans. They've been given a deadline of May 1st to file an amended complaint. Do you really believe that they are going to get it right this time after failing in Peruta and McKay?
Paragraph 23 of the complaint is what establishes standing:

Quote:
Originally Posted by Flanagan v Harris complaint
23. The individual Plaintiffs and members of Plaintiff CRPA wish immediately to exercise their constitutional right to carry a firearm in public for self-defense, but they are precluded from doing so because they are unable to obtain a Carry License, which would allow them to carry a firearm in a concealed manner, and because California law prohibits them from carrying a firearm openly. But for Defendants’ enforcement of statutes and policies that prohibit the individual Plaintiffs and members of Plaintiff CRPA from lawfully carrying a firearm in public, they would immediately begin carrying a firearm in public for self-defense.
(emphasis mine)

If that isn't sufficient to establish standing, then how did standing get established in District of Columbia v Heller (here's the complaint for reference: https://object.cato.org/sites/cato.o.../gunsuit.pdf)? After all, the plaintiffs there asserted the same things. The only difference being the use of the word "intends" versus "would immediately begin".

Perhaps that difference will make all the difference to the court. After all, the court will be looking for any reason whatsoever to dismiss the suit. But even if the court doesn't find against the plaintiffs on grounds on standing, it will find plenty of other reasons, even if it has to make them up from whole cloth.
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  #110  
Old 02-17-2017, 10:58 PM
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Quote:
Originally Posted by kcbrown View Post
Paragraph 23 of the complaint is what establishes standing:



(emphasis mine)

If that isn't sufficient to establish standing, then how did standing get established in District of Columbia v Heller (here's the complaint for reference: https://object.cato.org/sites/cato.o.../gunsuit.pdf)? After all, the plaintiffs there asserted the same things. The only difference being the use of the word "intends" versus "would immediately begin".

Perhaps that difference will make all the difference to the court. After all, the court will be looking for any reason whatsoever to dismiss the suit. But even if the court doesn't find against the plaintiffs on grounds on standing, it will find plenty of other reasons, even if it has to make them up from whole cloth.
All but heller got kicked out for standing grounds in Heller. Heller was the only one with standing because he on his own accord decided to get standing by applying and getting denied for a permit own a handgun 10 years prior to the litigation.
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Old 02-18-2017, 12:08 AM
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Here is an official update since there seems to be a good bit of confusion and misinformation being spread on this thread.

The court has taken the matter under submission and will issue a ruling at a later date. No ruling has been issued yet. The court has not ordered the filing of an amended complaint nor determined that it would be appropriate. May 1 is simply the current last day to amend the pleadings in general as set forth in the standard schedule of pretrial dates.

Also, Defendants did not ask the court to dismiss the challenge to the open carry restrictions. I HIGHLY recommend reading the Motions and our Opposition, as they will shed a great deal of light on this.

All filings in the case can be accessed here:

http://michellawyers.com/michelle-fl...-harris-et-al/

Regardless of the outcome of this MTD, Defendants' denial of the ability to carry a firearm in any manner will have been preserved for consideration by any appropriate reviewing courts (even in light of the en banc panel's improper characterization and treatment of the Peruta plaintiffs' claims.)

-Clint
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Old 02-18-2017, 2:49 AM
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All but heller got kicked out for standing grounds in Heller. Heller was the only one with standing because he on his own accord decided to get standing by applying and getting denied for a permit own a handgun 10 years prior to the litigation.
And the plaintiffs in this case likewise applied for permits (thus giving them standing with respect to the permit side of the equation). But with respect to the open carry prohibition, there is no permit to apply for and therefore nothing for the plaintiffs to do save for state that but for enforcement of the prohibiting law, they would carry their firearms.

Really, what else is there for them to do on that which wouldn't, of itself, be illegal for them to do? Actual violations of the law aren't required for standing (for some reason, I'm having trouble locating the case that says this), else all of these cases that have thus far been brought would have been dismissed for lack of standing.
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Old 02-18-2017, 5:18 AM
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All but heller got kicked out for standing grounds in Heller. Heller was the only one with standing because he on his own accord decided to get standing by applying and getting denied for a permit own a handgun 10 years prior to the litigation.
IIRC that was due to the DC Circuit's stringent rules on standing. In effect there wasn't a legitimate registration scheme in place at the time (no new handgun registrations allowed after 1976), yet it was still required.
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Old 02-18-2017, 2:04 PM
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And the plaintiffs in this case likewise applied for permits (thus giving them standing with respect to the permit side of the equation). But with respect to the open carry prohibition, there is no permit to apply for and therefore nothing for the plaintiffs to do save for state that but for enforcement of the prohibiting law, they would carry their firearms.

Really, what else is there for them to do on that which wouldn't, of itself, be illegal for them to do? Actual violations of the law aren't required for standing (for some reason, I'm having trouble locating the case that says this), else all of these cases that have thus far been brought would have been dismissed for lack of standing.
I am not the one saying they don't have standing. I was just answering your question. I was actually crashing at Dick Heller's place last summer while I was taking a break from hiking the AT. I had him take the registration slip and handgun that he wanted to buy out of the bank safe so I could take some pictures with it. I told him he should donate it to the NRA museum in his will. Its a great piece of history.
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Old 02-24-2017, 6:05 PM
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http://blog.californiarighttocarry.o...to-dismiss.pdf

official order the LASD Motion is GRANTED and the claim against LASD based on the Second Amendment, is DISMISSED.The California Motion is GRANTED as to the challenge to the claims based
on concealed carry, and DENIED as to the claims based on the open carry limitations.
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Old 02-24-2017, 6:43 PM
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Originally Posted by wolfwood View Post
http://blog.californiarighttocarry.o...to-dismiss.pdf

official order the LASD Motion is GRANTED and the claim against LASD based on the Second Amendment, is DISMISSED.The California Motion is GRANTED as to the challenge to the claims based
on concealed carry, and DENIED as to the claims based on the open carry limitations.
Since California's motion as regards open carry was denied (which I presume is because California didn't ask for that), what of the plaintiff's motion as regards open carry? Is the court to issue a separate opinion on that?
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Old 02-24-2017, 6:44 PM
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Fruit of the poisoned tree, if you will:
Quote:
Peruta precludes Plaintiffs’ Second Amendment claims based on California’s concealed carry laws and
their enforcement by the LASD. “As the uncontradicted historical evidence overwhelmingly shows, the
Second Amendment does not protect, in any degree, the right of a member of the general public to carry
a concealed weapon in public.” Peruta, 824 F.3d at 942; see also id. at 939 (“We therefore conclude that
the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member
of the general public to carry concealed firearms in public.”).
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Old 02-24-2017, 6:45 PM
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Since California's motion as regards open carry was denied (which I presume is because California didn't ask for that), what of the plaintiff's motion as regards open carry? Is the court to issue a separate opinion on that?
that is not how it works. If the Plaintiffs want to have that ruled on they have to file something.
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Old 02-24-2017, 7:04 PM
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that is not how it works. If the Plaintiffs want to have that ruled on they have to file something.
I erred when I said "plaintiff's motion". The plaintiff's "motion" is the complaint itself.

If the court's decision as regards the open carry basis of the complaint was to deny dismissal of the complaint on that basis, then that basis stands, does it not? If that's the case, then the complaint itself stands, right?

What's the next step here?
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Old 02-24-2017, 7:45 PM
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If they really want to litigate a open carry case then it proceeds to discover and then someone files a motin for summary judgement or it goes to trial.
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