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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 09-04-2010, 12:03 AM
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Default Partial MSJ Filed in Peruta

On September 3, 2010, attorneys from the law firm of Michel & Associates, PC filed a motion for partial summary judgment in a case filed in the United Stated District Court for the Southern District challenging the CCW issuance policies and practices of the San Diego Sheriff’s Department. Specifically, the suit asserts that self-defense constitutes “good cause” for the purposes of Cal. Pen. Code section 12050, and that the requirement that an applicant demonstrate documentary evidence of some specific threat is an unconstitutional restriction on the right to keep and bear arms under the Second Amendment.

The motion also asserts violations of the Equal Protection Clause, based on allegations that the Sheriff issues CCWs to politically connected people more readily than to the general public.

A more detailed article will be posted after the holiday weekend. To view the partial motion for summary judgment go to www.calgunlaws.com

The plaintiffs include several individuals who were either denied CCWs or do not qualify under the Sheriff’s strict issuance standards, as well as the CRPA Foundation, making this a NRA–CRPA Foundation Legal Action Project sponsored lawsuit.

To fight for the self-defense civil rights of all Californians, the NRA and CRPA Foundation have joined forces to create the Legal Action Project (LAP). Through LAP, NRA/CRPAF attorneys fight against ill-conceived gun control laws and ordinances, educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners, and produce valid science about game and wildlife resource management.

To contribute to the NRA / CRPAF Legal Action Project (LAP) and support this and similar efforts and Second Amendment litigation in California, visit www.crpafoundation.org.
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Last edited by CDMichel; 09-04-2010 at 5:13 PM..
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Old 09-04-2010, 12:05 AM
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Outstanding.
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Old 09-04-2010, 12:06 AM
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LAP FTW!!!
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Old 09-04-2010, 12:07 AM
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1E9 +

Looks like it's starting now!
Let the first domino fall.
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Old 09-04-2010, 12:10 AM
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is this a similar case to the one CGF has in the works but for S.D.?
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Old 09-04-2010, 12:13 AM
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Nice.
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Old 09-04-2010, 1:09 AM
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Awesome!
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Old 09-04-2010, 1:10 AM
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Sorry, IANAL, just trying to understand. What does partial summary judgement mean? Are you reserving claims or requests for remedies for later?
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Old 09-04-2010, 1:12 AM
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I didn't have to log in to that site to reach this:
http://www.calgunlaws.com/images/sto...sj%20filed.pdf
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Old 09-04-2010, 1:18 AM
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Love it! We should have Strict Scrutiny protections for this key part of the 2nd Amendment. Even for a non lawyer, page 22 reads very well.

I bought the S&W in my avatar when Sykes was filed, but if Peruta restores our rights in SD, I would celebrate just as much.
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  #11  
Old 09-04-2010, 1:22 AM
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This is excellent!

Can someone give a quick comparison of the similarities / differences between the Sykes & Peruta cases?
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Old 09-04-2010, 1:40 AM
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Quote:
Originally Posted by Maestro Pistolero View Post
Sorry, IANAL, just trying to understand. What does partial summary judgement mean? Are you reserving claims or requests for remedies for later?
Correct. A "partial" MSJ means that we are not pursuing all claims asserted in our complaint. Some of them were not appropriate for MSJ at this time. The main claim, the Second Amendment claim, however, is included in this motion.
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Old 09-04-2010, 1:43 AM
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Quote:
Originally Posted by du9207 View Post
is this a similar case to the one CGF has in the works but for S.D.?
This is the case for S.D.
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Old 09-04-2010, 1:43 AM
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And the barrage begins. Posted on the CalGuns.net Facebook page.
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Old 09-04-2010, 2:56 AM
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Very cool that it's filed, however I doubt it'll be granted. I suspect they're going to say no to it, and that we'll end up having to fight it up to the 9th Circuit at the very least.
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Old 09-04-2010, 2:58 AM
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Epic... if we win, would this apply only to San Diego, or would it include the entire state?
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Old 09-04-2010, 3:01 AM
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Please God let there be just one judge this side of the supreme court who isn't too damn smart to believe that the amendment means exactly what the frigg it says. Just once can we please cut the **** and apply the constitution AS IS?
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  #18  
Old 09-04-2010, 4:07 AM
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Quote:
Originally Posted by santacruzstefan View Post
Epic... if we win, would this apply only to San Diego, or would it include the entire state?
Pretty sure it's not just SD. However, I don't think it's the entire state either.

http://www.casd.uscourts.gov/ - unfortunately they don't have a readily-findable map of their influence zones.
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Old 09-04-2010, 4:55 AM
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Quote:
Originally Posted by grammaton76 View Post
Pretty sure it's not just SD. However, I don't think it's the entire state either.

http://www.casd.uscourts.gov/ - unfortunately they don't have a readily-findable map of their influence zones.
I'm pretty sure that if a suit against San Diego County is won at the District Court level that the judgment is enforceable only on San Diego and Imperial Counties. If San Diego County settles/folds, then only San Diego would be directly affected.

However, a win in Peruta at this level will be influential in other counties and provide persuasive/authoritative arguments in other cases around the state even if it would not be true precedent. In other words, a strong win in San Diego could lead to most other counties collapsing like a house of cards on this issue.

However, if Peruta should lose at this level and appeal the case to the 9th Circuit Court and win at that level - then Peruta will be precedential throughout the entire 9th Circuit - but as a non-lawyer I'm not sure that there couldn't be some aspects which would not apply perfectly in some of the other states.

And, of course, should Peruta lose at the 9th Circuit and go to SCOTUS, any decision at that level would be precedential throughout the entire U.S.

FWIW

Wikipedia says that the United Stated District Court for the Southern District of California comprises San Diego and Imperial Counties.

Last edited by OleCuss; 09-04-2010 at 5:31 AM..
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Old 09-04-2010, 5:17 AM
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Quote:
Originally Posted by sbrady@Michel&Associates View Post
Correct. A "partial" MSJ means that we are not pursuing all claims asserted in our complaint. Some of them were not appropriate for MSJ at this time. The main claim, the Second Amendment claim, however, is included in this motion.
If this motion is granted, what happens to the claims that were not asserted in the MSJ?
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Old 09-04-2010, 6:47 AM
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What a beautiful morning it is to wake up and read this!!!
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Old 09-04-2010, 7:01 AM
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Quote:
Originally Posted by grammaton76 View Post
Very cool that it's filed, however I doubt it'll be granted. I suspect they're going to say no to it, and that we'll end up having to fight it up to the 9th Circuit at the very least.
Judge Irma Gonzalez is a good and fair judge. I think she'll grant it. Look at her denial of the motion to dismiss.
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Old 09-04-2010, 7:18 AM
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Outstanding! Hopefully, the persuasive authority from a win here will be enough to take on LA County in the near future.
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Old 09-04-2010, 7:28 AM
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I woke to find this MSJ on this very pretty morning in San Diego County, so it is a doubly nice day and holiday weekend.

I note that folks thought Judge Gonzalez would dismiss this case too, but she did not. I am thinking she will continue to read the law as stated in Heller and McDonald and rule that we have a right to keep and bear arms that means that self defense is enough cause for "good cause".

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Old 09-04-2010, 7:40 AM
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Peruta Partial MSJ Memo of Points and Authorities
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Old 09-04-2010, 7:43 AM
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Give 'em hell, Chuck!
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Old 09-04-2010, 8:02 AM
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Watch but substitute "Sheriff" for "dink" to see an apt analogy to this "war" for our RKBA in the PRK.

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Old 09-04-2010, 8:14 AM
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Quote:
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If this motion is granted, what happens to the claims that were not asserted in the MSJ?
The claims not covered in the MSJ continue to move forward toward trial even if the MSJ is granted.
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Old 09-04-2010, 8:16 AM
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Can we anticipate movement in Sykes that will be properly timed to influence this case before the judge rules on this MSJ?
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Old 09-04-2010, 8:28 AM
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On the Equal Protection Issues:

Though all responsible, law-abiding persons are entitled to exercise their rights to bear
Arms by carrying a handgun for self-defense, many opt not to. Those who choose to, and thus seek a CCW to do so lawfully, do so for one or more of several different reasons. Some have been victims of crime or know someone who has, others are engaged in activity that makes them an appealing target to criminals, while others live in an unsafe environment or simply do not feel safe without having ready access to a firearm. Though there are many reasons for wanting to carry a handgun for self-defense, some people have very similar reasons. Some even have similar circumstances underlying their desire to do so. This is the case with Plaintiffs and certain members of the HDSA who received CCWs from the County. All Plaintiffs sought a CCW from the County for self-defense purposes, but were denied or, in the cases of Plaintiffs Laxson and Dodd decided not to apply, because they were dissuaded at their initial interview and/or could not satisfy the requirements of County’s unlawful policy. (SUF 17). Curiously, certain HDSA members were granted CCWs by the County despite failing to provide such documentation. For example, in the “good cause” section of their applications, some HDSA members merely stated “personal protection” or “protection” without further explanation or supporting documentation. SUF 18. One HDSA member simply stated “personal protection– public figure,” without providing any supportive documentation. SUF 19 And, in perhaps the most egregious case, one member did not even provide a statement of “good cause” in his application. SUF 20. Further, multiple HDSA members were issued a CCW by the County for “business reasons” who failed to provide any supporting documentation SUF 21. In fact, one such application simply stated “personal safety, carry large sums of money,” and another said he is retired but he needs to accompany his employees to the bank; again, neither providing any supportive documentation. SUF 22.

The individual circumstances of these HDSA members who were issued CCWs
demonstrates they are treated more favorably by the County than were Plaintiffs as to the issuance of CCWs; and, notes made by employees of the County who process CCW applications as to these particular individuals further support this position. SUF 23. Finally, the account of events related by Plaintiff Mark Cleary as to his process of obtaining a CCW leaves no doubt that the County treats HDSA members differently than the members of the general public. SUF 24

By these actions, the County has created a classification of persons (i.e., non-members of the HDSA) who, despite having reasons for wanting a CCW similar to others who were issued one by the County, are deprived of a fundamental right (i.e., the right to bear arms) because of their lack of membership in a civilian organization whose primary purpose is to finance projects for the San Diego Sheriff’s Department. SUF 25. There is no rational basis for this disparate treatment.

Defendants can offer no rational basis to justify their disparate treatment of HDSA members and the general public, let alone an important or compelling interest. See Guillory v. County of Orange, 731 F.2d 1379, 1383 (9th Cir. 1984) (A case involving a challenge alleging disparate treatment in issuing CCWs where the court explained: “A law that is administered so as to unjustly discriminate between persons similarly situated may deny equal protection,” citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). HDSA is a private, civilian organization, membership in which does not alone make one more capable or trustworthy with a CCW than non-members, such as Plaintiffs. Membership is achieved by mere sponsorship by a current member or active deputy, providing three letters of reference, passing a background check, making a “donation” and paying annual dues. And, although a background check is required, the California Penal Code already requires one for CCW applicants. SUF 26. Thus, there is nothing inherently or rationally different about HDSA


I swear, this needs to be called the Guillory doctrine.

Last edited by Gray Peterson; 09-04-2010 at 8:35 AM..
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Old 09-04-2010, 8:39 AM
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Can someone RECAP the rest of document 34, the exhibits and the declarations please?
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Old 09-04-2010, 9:11 AM
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Who or what is the HDSA ? And could this eventually lead to Constitutional carry like Alaska, Arizona and Vermont ?

Last edited by Roadrunner; 09-04-2010 at 9:15 AM..
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Old 09-04-2010, 9:20 AM
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HDSA = Honorary Deputy Sheriffs Association
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Old 09-04-2010, 9:37 AM
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Quote:
Originally Posted by Gray Peterson View Post
On the Equal Protection Issues:

Though all responsible, law-abiding persons are entitled to exercise their rights to bear
Arms by carrying a handgun for self-defense, many opt not to. Those who choose to, and thus seek a CCW to do so lawfully, do so for one or more of several different reasons. Some have been victims of crime or know someone who has, others are engaged in activity that makes them an appealing target to criminals, while others live in an unsafe environment or simply do not feel safe without having ready access to a firearm. Though there are many reasons for wanting to carry a handgun for self-defense, some people have very similar reasons. Some even have similar circumstances underlying their desire to do so. This is the case with Plaintiffs and certain members of the HDSA who received CCWs from the County. All Plaintiffs sought a CCW from the County for self-defense purposes, but were denied or, in the cases of Plaintiffs Laxson and Dodd decided not to apply, because they were dissuaded at their initial interview and/or could not satisfy the requirements of County’s unlawful policy. (SUF 17). Curiously, certain HDSA members were granted CCWs by the County despite failing to provide such documentation. For example, in the “good cause” section of their applications, some HDSA members merely stated “personal protection” or “protection” without further explanation or supporting documentation. SUF 18. One HDSA member simply stated “personal protection– public figure,” without providing any supportive documentation. SUF 19 And, in perhaps the most egregious case, one member did not even provide a statement of “good cause” in his application. SUF 20. Further, multiple HDSA members were issued a CCW by the County for “business reasons” who failed to provide any supporting documentation SUF 21. In fact, one such application simply stated “personal safety, carry large sums of money,” and another said he is retired but he needs to accompany his employees to the bank; again, neither providing any supportive documentation. SUF 22.

The individual circumstances of these HDSA members who were issued CCWs
demonstrates they are treated more favorably by the County than were Plaintiffs as to the issuance of CCWs; and, notes made by employees of the County who process CCW applications as to these particular individuals further support this position. SUF 23. Finally, the account of events related by Plaintiff Mark Cleary as to his process of obtaining a CCW leaves no doubt that the County treats HDSA members differently than the members of the general public. SUF 24

By these actions, the County has created a classification of persons (i.e., non-members of the HDSA) who, despite having reasons for wanting a CCW similar to others who were issued one by the County, are deprived of a fundamental right (i.e., the right to bear arms) because of their lack of membership in a civilian organization whose primary purpose is to finance projects for the San Diego Sheriff’s Department. SUF 25. There is no rational basis for this disparate treatment.

Defendants can offer no rational basis to justify their disparate treatment of HDSA members and the general public, let alone an important or compelling interest. See Guillory v. County of Orange, 731 F.2d 1379, 1383 (9th Cir. 1984) (A case involving a challenge alleging disparate treatment in issuing CCWs where the court explained: “A law that is administered so as to unjustly discriminate between persons similarly situated may deny equal protection,” citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). HDSA is a private, civilian organization, membership in which does not alone make one more capable or trustworthy with a CCW than non-members, such as Plaintiffs. Membership is achieved by mere sponsorship by a current member or active deputy, providing three letters of reference, passing a background check, making a “donation” and paying annual dues. And, although a background check is required, the California Penal Code already requires one for CCW applicants. SUF 26. Thus, there is nothing inherently or rationally different about HDSA


I swear, this needs to be called the Guillory doctrine.
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Old 09-04-2010, 9:39 AM
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Quote:
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Brave appreciates the compliment.

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Expect the term Guillory doctrine to be used more in the future. Btw, thanks for helping the Peruta plaintiffs out on their equal protection claim (Peruta gave you props on OCDO). It accentuated an already excellent brief on 2A issues.

Last edited by Gray Peterson; 09-04-2010 at 9:43 AM..
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Old 09-04-2010, 9:53 AM
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lets hope
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Old 09-04-2010, 10:14 AM
N6ATF N6ATF is offline
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Here's hoping for a win. Will Gore then run away from it, to prevent him and his HDSA squad making the news and being federally investigated for corruption like Mike Carona?
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Old 09-04-2010, 10:17 AM
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Quote:
Originally Posted by N6ATF View Post
Here's hoping for a win. Will Gore then run away from it, to prevent him and his HDSA squad making the news and being federally investigated for corruption like Mike Carona?
That's Bill Gore's call to make.
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Old 09-04-2010, 10:23 AM
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I'll be keeping a close eye on this one. I hope for a win!
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Old 09-04-2010, 10:30 AM
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Here's hoping for a win. Will Gore then run away from it, to prevent him and his HDSA squad making the news and being federally investigated for corruption like Mike Carona?
I hope he rides it into the ground like Slim Pickens in Dr. Strangelove. Corrupt politicians need to be flushed.
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