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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 12-16-2013, 6:03 PM
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Default Fyock v. Sunnyvale:Large-Capacity Magazines (Official Thread) UPDATE 5/16

The NRA filed against Sunnyvale in federal court today, saying the magazine ban ordinance from Measure C is unconstitutional under the 2A. Read it here:

http://michellawyers.com/wp-content/...ive-Relief.pdf


UPDATE: Opening brief filed with the 9th circuit on 5/16: http://michellawyers.com/wp-content/...ning-Brief.pdf
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Last edited by bulgron; 05-19-2014 at 9:15 AM.. Reason: Opening brief.
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Old 12-16-2013, 6:07 PM
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Originally Posted by bulgron View Post
The NRA filed against Sunnyvale in federal court today, saying the magazine ban ordinance from Measure C is unconstitutional under the 2A. Read it here:

http://michellawyers.com/wp-content/...ive-Relief.pdf
So funny!! All kinds of people told them they would end up in court over this but they said, "LCAV promised us it wouldn't happen" LMAO
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Old 12-16-2013, 6:51 PM
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This seems like a good case. The complaint makes a strong case that these are not unusual, but rather, these are the standard magazines used in the US today. I assume they are planning to use this case to possibly challenge all the magazine restrictions in CA, NY etc.
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Old 12-16-2013, 7:23 PM
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Originally Posted by CCWFacts View Post
This seems like a good case. The complaint makes a strong case that these are not unusual, but rather, these are the standard magazines used in the US today. I assume they are planning to use this case to possibly challenge all the magazine restrictions in CA, NY etc.
Filed in "...United States District Court...".

I'd say that they are positioning this to eliminate ALL regs restricting standard magazine capacities.

Additionally, I could see this potentially effecting AW regs that make any mention of magazine capacities. As an example, an AR15 configured with attached 30 round magazine

Lotsa mention of Heller, McDonald, and 'common use' in that document.

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Old 12-16-2013, 7:47 PM
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CV13-05807
Quote:
2 Sunnyvale Municipal Code Section 9.44.050:
3 19. On July 16, 2013, the Sunnyvale City Council adopted a resolution
4 calling for a Special Municipal Election to be held on November 5, 2013, for the
5 purpose of voting on various proposed amendments to the Sunnyvale Municipal
6 Code, including a slate of local gun-control laws that would be presented to the
7 voters as Measure C. The ballot measure asked voters to adopt, among other items,
8 Sunnyvale Municipal Code section 9.44.050. (A copy of Sunnyvale Municipal
9 Code section 9.44.050 is attached hereto as Exhibit “A” and incorporated herein.)
10 20. On November 5, 2013, a majority of the ballots cast voted to approve
11 the adoption of Measure C and, effectively, to amend the Sunnyvale Municipal
12 Code to include section 9.44.050.
13 21. On or about November 26, 2013, the City of Sunnyvale, through its
14 legislative body the City Council of the City of Sunnyvale, “declared” the
15 November 5 vote on Measure C pursuant to California Elections Code section
16 9217.
17 22. The Ordinance took effect on December 6, 2013, ten (10) days after the
18 Sunnyvale City Council declared the vote.
19 23. The Ordinance prohibits any person, corporation, or other entity in the
20 City of Sunnyvale from possessing ammunition magazines it refers to as “large-
21 capacity magazines
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Old 12-16-2013, 7:48 PM
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These cities never learn do they? If the city decides to fight it and doesn't rescind the law, its going to be very costly to the city. Your tax dollars at work.
They can't rescind it. The city foolishly enabled this by ballot measure, so the only way to get it to go away is to either lose the lawsuit or another ballot measure.

In other words, this one won't get settled out of court. It's got legs.
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Old 12-17-2013, 9:44 AM
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Default Fyock v. Sunnyvale:Challenge to Ban on Standard Capacity Magazines (Official Thread)

Here is the official lawsuit announcement from the NRA. Chuck Michel was also on KQED (Bay Area) this morning with Larry Barsetti of SF Veteran Police Officers Association debating Mayor Spitaleri of Sunnyvale and Julie Leftwich of the LCPGV.

http://www.nraila.org/legislation/st...=&st=10469&ps=

Several Sunnyvale residents have filed lawsuit supported by the National Rifle Association, challenging the City’s recent ban on the possession of magazines capable of holding more than ten rounds. The federal, Second Amendment-based legal challenge is part of a campaign of nationwide litigation filed and supported by a variety of individuals, civil rights groups, and law enforcement officers and associations. The coordinated lawsuits seek to confirm that the Second Amendment protects these common standard-capacity magazines for self-defense and sporting purposes.

Firearms equipped with magazines capable of holding more than ten rounds have been around for nearly two centuries. Today, these firearms are possessed by millions of law-abiding citizens for a variety of lawful purposes, including self-defense. And the U.S. Supreme Court has affirmed that self-defense is the “central component” of the Second Amendment.

As most gun owners already know, magazines holding more than ten rounds are standard equipment for many popular pistols and rifles throughout the country. In fact, most pistols in the United States are manufactured and sold with magazines holding between ten and seventeen rounds.

The overwhelming majority of states have not banned law-abiding citizens from owning standard-capacity firearms. And only a handful of states refer to such firearms and magazines as being “high-capacity.” The label “large-capacity magazine” is, of course, a term created by anti-gun zealots in an attempt to ostracize what, in reality, is the absolute norm nationwide. Some in the gun ban lobby have even started referring to magazines over ten rounds as “mega magazines.”

The majority of law enforcement officers in the United States acknowledge that banning standard-capacity magazines capable of holding more than ten rounds will not increase public safety. There is now a growing trend of law enforcement organizations actively opposing and challenging these measures in court. The San Francisco Veteran Police Officers Association (SFVPOA) recently filed a lawsuit challenging San Francisco’s recent ban on the possession of standard-capacity magazines. In Colorado, a broad coalition of law enforcement officials filed suit against that state's recently-enacted ban on common magazines. Earlier this year in New York, the State Sheriffs Association, the Law Enforcement Legal Defense Fund and individual law enforcement officers filed an amicus brief in support of a challenge to the state ban on common rifles and magazines. And in Connecticut, a coalition of individual law enforcement officers and the Law Enforcement Legal Defense Fund filed another legal brief in support of pending challenge to similar laws.

The Sunnyvale ordinance essentially allows for confiscation of any prohibited magazines and, because of state laws restricting their transfer, they cannot be replaced. Sunnyvale's ordinance took effect on December 6, 2013. Residents of Sunnyvale then have until March 6, 2014 to turn over their lawfully-possessed magazines to the police, remove them from Sunnyvale in the few cases where it might be legal or transfer them to a licensed firearms dealer.

Lawyers at Michel & Associates representing the plaintiffs will seek an injunction to prevent Sunnyvale from enforcing this law. The plaintiffs are prepared to appeal this case as high as necessary to have this misguided ordinance declared unconstitutional. This important Second Amendment issue may ultimately be addressed by the U.S. Supreme Court.

By allowing residents and visitors to Sunnyvale to only possess reduced-capacity magazines, the City has arbitrarily limited the number of rounds that its law-abiding residents have to protect themselves and their loved ones. Hunters and sport shooters traveling through Sunnyvale with these magazines can also be prosecuted, even if they are unaware of this law.

Even active law enforcement officers are forced to surrender their magazines and cannot possess anything but reduced-capacity firearms for self-defense in their homes. Although this law strangely exempts some retired law-enforcement officers who are authorized to carry a concealed firearm, it only exempts magazines possessed by active law enforcement officers while acting in the course and scope of their duties.

Police officers who have any magazines over ten rounds in their personal collections, or any magazines they were authorized to purchase for off-duty use, must dispose of those magazines. If they don’t, the officers will become criminals. The same is true for active law enforcement officials in San Francisco where the City Attorneys Office confirmed that only official-duty magazines issued by the Police Department are exempt.

Family members of law enforcement officers are also at risk. If an officer leaves the house without locking his or her magazines away, anyone who is present in the home will be in violation of the law. These misguided laws also place thousands of state and federal law enforcement officials who travel through Sunnyvale and San Francisco in jeopardy. Many off-duty law enforcement officials lawfully carry a firearm with a magazine that holds more than ten rounds when traveling in other cities and states. Every time these officers travel into San Francisco or Sunnyvale, they will be in violation of the law and subject to criminal prosecution.

Sunnyvale’s decision to limit law-abiding citizens to magazines holding a maximum of ten rounds endangers the public by giving violent criminals an advantage and decreasing the likelihood that a victim will survive a criminal attack. Of course, criminals who wish to carry out violent attacks will not be thwarted by the City’s restriction since they ignore all gun control laws. Criminals will simply continue to do what they have always done – buy and possess magazines on the black market or carry multiple firearms to complete their violent crimes.

The Sunnyvale magazine ban is part of a gun control package known as “Measure C” – a ballot measure that was passed by Sunnyvale voters earlier this year. Litigation has already been filed by the National Shooting Sports Foundation challenging the law’s ammunition sales registration requirements, which are preempted by state law and violate state privacy protections.

To assist in the fight against these attacks on gun owners' rights in California, please donate to the NRA Legal Action Project today. For a summary of the many actions the NRA's legal team at Michel & Associates has taken on behalf of California gun owners, click here.

Second Amendment supporters should also be careful about supporting litigation efforts promised by other individuals and groups without access to the necessary funding, relationships, firearm experts and experienced lawyers on the NRA's national legal team. The NRA's team of highly regarded civil rights attorneys and scholars has the resources, skill and expertise to maximize the potential for victory.
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Old 12-17-2013, 10:23 AM
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Best of luck with the case.
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Old 12-17-2013, 10:51 AM
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Would be nice if the mayor could be held personally liable for the costs
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Old 12-17-2013, 11:06 AM
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This will be interesting.

Thanks for all that you do.

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Old 12-17-2013, 1:14 PM
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Originally Posted by CMonfort View Post
The Sunnyvale magazine ban is part of a gun control package known as “Measure C” – a ballot measure that was passed by Sunnyvale voters earlier this year. Litigation has already been filed by the National Shooting Sports Foundation challenging the law’s ammunition sales registration requirements, which are preempted by state law and violate state privacy protections.
I saw no mention of state preemption in this complaint. State preemption seems to me to be the most obvious avenue to get the magazine ordinance tossed out, even though a victory on 2A grounds rather than state preemption would be more valuable to our cause. State preemption worked against the SF handgun ban for example.

Is there a reason why state preemption isn't being brought up?
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Old 12-17-2013, 1:41 PM
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Originally Posted by stix213 View Post
I saw no mention of state preemption in this complaint. State preemption seems to me to be the most obvious avenue to get the magazine ordinance tossed out, even though a victory on 2A grounds rather than state preemption would be more valuable to our cause. State preemption worked against the SF handgun ban for example.

Is there a reason why state preemption isn't being brought up?
Probably because the goal is to not only get this ordinance taken down but to take down other magazine restrictions.
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Old 12-17-2013, 1:46 PM
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Probably because the goal is to not only get this ordinance taken down but to take down other magazine restrictions.
If this attempt fails, can we later file a case based on state preemption, or is it a case of too bad you should have brought that up the first time?
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Old 12-17-2013, 1:49 PM
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Probably because the goal is to not only get this ordinance taken down but to take down other magazine restrictions.
Bingo.
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Old 12-17-2013, 5:01 PM
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Originally Posted by stix213 View Post
I saw no mention of state preemption in this complaint. State preemption seems to me to be the most obvious avenue to get the magazine ordinance tossed out, even though a victory on 2A grounds rather than state preemption would be more valuable to our cause. State preemption worked against the SF handgun ban for example.

Is there a reason why state preemption isn't being brought up?
I was just about to post the same.... and I am curious as to the answer of your second question.

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Old 12-17-2013, 5:04 PM
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But....but...but... The NRA never does a damn thing for gunowners... they are non-existent in California.
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Old 12-17-2013, 5:51 PM
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For remedies available pursuant to 42 U.S.C.
§ 1983 and for an award of 1 reasonable attorneys fees, costs, and expenses pursuant to 42 U.S.C. § 1988 and/or 2 other applicable federal law;
GET SOME!

I was quite glad to see the above line in there. Make those that would infringe our rights pay for the pleasure of the attempt.

I have heard however it is not easy to get attorney's fees. Is that factual or is that urban hogwash?

In any event, I'd love to see the attorney's bill and bill and bill so that SV and its misled voters have some pain for trying to attack the 2nd. In the event the case is lost, I'd like to hope that those same attorney's would forgive the debt as much as possible to those bringing suit.

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Old 12-17-2013, 6:39 PM
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Originally Posted by bulgron View Post
They can't rescind it. The city foolishly enabled this by ballot measure, so the only way to get it to go away is to either lose the lawsuit or another ballot measure.

In other words, this one won't get settled out of court. It's got legs.
Very long legs I would think. Then correct me if I'm wrong, this won't end until the NRA says so or SV gives up with an unfavorable ruling (big win for us!)? SV is on the hook through trial, the 9th Circuit and up until SCOTUS either takes the case or denies it. I wouldn't think SV would have another ballot measure.
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Old 12-18-2013, 7:56 AM
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Originally Posted by stix213 View Post
If this attempt fails, can we later file a case based on state preemption, or is it a case of too bad you should have brought that up the first time?
I wouldnt think laws are protected by double jeopardy (and technically it wouldnt be double jeopardy anyway in my understanding) so I dont think there would be anything stopping another suit based on preemption. Just my $.02 though
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Old 12-18-2013, 8:03 AM
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I wouldnt think laws are protected by double jeopardy (and technically it wouldnt be double jeopardy anyway in my understanding) so I dont think there would be anything stopping another suit based on preemption. Just my $.02 though
Right now preemption has been on a bit of a back burner due to some cases where preemption lost.

A 2A stand in this case is going right for the heart of the problem and simply bypassing CA and its constitution. (and of course BS laws)
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Old 12-18-2013, 9:43 AM
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A 2A stand in this case is going right for the heart of the problem and simply bypassing CA and its constitution. (and of course BS laws)
That was my thought. Quit pu$$y-footing around with state garbage and get right in front of the feds. And I guarantee you SV does not have the deep pockets for this. If we get a win out of this it could be very big, while a loss won't hurt as much if it can later be challenged on state preemption grounds.

This has the potential for an effect nationwide.

Last edited by mshill; 12-18-2013 at 9:46 AM..
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Old 12-18-2013, 10:28 AM
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Old 12-18-2013, 10:37 AM
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That was my thought. Quit pu$$y-footing around with state garbage and get right in front of the feds. And I guarantee you SV does not have the deep pockets for this. If we get a win out of this it could be very big, while a loss won't hurt as much if it can later be challenged on state preemption grounds.

This has the potential for an effect nationwide.
Really? What makes you think that the state Dems that applaud this wouldn't try to help SV get deep pockets? Far as I know (and I could be wrong), there's no law saying that they couldn't do just this.

It makes sense in a sick way: if SV loses on this it has a few possible outcomes:

1. Overturn state ban on magazine capacity
2. Provide precedence to overturn state ban on magazine capacity.
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Old 12-18-2013, 11:31 AM
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I think, IMO, the only possible way this would get to SCOTUS is if the State stepped in to defend the State law if it went south for SV at the District level, and then take it to the 9th Circuit. Heck, the State just might just step in at the District Court level to help SV out and make sure things don't get out of hand as others have postulated.

I wouldn't hazard a guess at the odds of that happening, though. Barring that, I doubt Sunnyvale itself, would spend the money itself to take it to the 9th on a loss without that happening.
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Old 12-18-2013, 4:10 PM
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Does anyone know the process here? Does this go before a grand jury for consideration or just one judge (or even a civil jury)? How long should we expect to wait for a final ruling in this case?
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Old 12-18-2013, 4:13 PM
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We'll probably see a decision on this case before Palmer v DC. is concluded.
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Old 12-18-2013, 5:10 PM
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Ok, so does filing "a case for declaratory and injunctive relief" have any impact on enforcement prior to a decision? A visit the range in Sunnyvale allot and dont want to lose any mags or get into any trouble after march '14 while inside city limits. When is Palmer vs. DC expected to conclude?
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Old 12-18-2013, 5:20 PM
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We'll probably see a decision on this case before Palmer v DC. is concluded.
I see what you did there
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Old 12-18-2013, 7:28 PM
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Barring that, I doubt Sunnyvale itself, would spend the money itself to take it to the 9th on a loss without that happening.
Sunnyvale is being represented pro bono by some anti-gun law firm that I've never heard of. They can take this thing all the way to the Supremes and it won't cost Sunnyvale anything. Well, unless they lose and have to pay NRA's attorney's fees.
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Old 12-18-2013, 8:46 PM
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I hope they lose this one so bad. Included in the complaint is the requirement that they make a declaration and the juice from this could possibly revert the magazine laws in this state to a place of normalcy. And put egg on the face of all anti-2a dems that like coming up with buzzwords to suit there agendas and trample our rights.
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Old 12-19-2013, 5:41 AM
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Originally Posted by bulgron View Post
Sunnyvale is being represented pro bono by some anti-gun law firm that I've never heard of. They can take this thing all the way to the Supremes and it won't cost Sunnyvale anything. Well, unless they lose and have to pay NRA's attorney's fees.
True, but Sunnyvale would still have to give them the go ahead, and risk the judgement of costs and attorney fees. I'm still not sure if they have that kind of fortitude.
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Old 12-19-2013, 2:27 PM
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Originally Posted by Southwest Chuck View Post
True, but Sunnyvale would still have to give them the go ahead, and risk the judgement of costs and attorney fees. I'm still not sure if they have that kind of fortitude.
Mayor Spitaleri terms out on Jan 7. He's the one who really drove this turkey. (And, by all accounts, will be pushing measures like this one in Mountain View and other cities.) With him gone, a lot of the energy behind these gun control ordinances will also disappear. At least, I hope it will.

Spitaleri was helped along by Councilmember Jim Davis (a former Sunnyvale cop, and a Republican, so people can stop telling me how much Republicans like gun rights now). Davis wants to be mayor, but he's only been on the Council for a couple of years.

There's two other CMs who want to be mayor and they have way more experience than does Davis. One of them, CM Whittum, was the only one on Council to vote against placing Measure C on the ballot. He did that twice. He also publicly stated in a council meeting that he hoped Measure C "flamed out."

The other candidate for mayor -- Vice Mayor Griffith -- is not particularly a friend to gun owners, but he definitely has other priorities. My belief is that he just wishes the whole thing would go away because he has other priorities and this will be a distraction from them.

Who becomes mayor will probably have a lot to do with how aggressively Sunnyvale pursues appeals. Of course, given how long it takes for these things to work their way through the courts, probably what we really need to worry about is who will be mayor 5 years from now.

For the confused, Sunnyvale's mayors are not elected by the residents, but instead are elected by the City Council from among the sitting council members. Under the circumstances, given the way this town tilts, I think it's better that way.
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Old 12-20-2013, 8:03 AM
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U.S. Firearms Company v. Sunnyvale is the state preemption suit.

It's not double jeopardy, just an opportunity for the city to lose twice...
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Old 12-20-2013, 8:27 AM
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U.S. Firearms Company v. Sunnyvale is the state preemption suit.

It's not double jeopardy, just an opportunity for the city to lose twice...
No, U.S. Firearms v. Sunnyvale is on Measure C's ammunition registration and reporting stolen guns ordinances. It makes state preemption claims, but it also has some interesting arguments regarding privacy. This was filed in state court.

Fyock is on Measure C's magazine ban. It's a straight-up Second Amendment claim in federal court.


Measure C actually enacted four ordinances, so there's plenty of opportunities to bring lawsuits against Sunnyvale without ever having to worry about double jeopardy issues.
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Old 12-23-2013, 7:52 AM
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Ok, so does filing "a case for declaratory and injunctive relief" have any impact on enforcement prior to a decision? A visit the range in Sunnyvale allot and dont want to lose any mags or get into any trouble after march '14 while inside city limits. When is Palmer vs. DC expected to conclude?
You are looking for the words "preliminary injunction" in future news. That is JAG for "leave us alone until the lawsuit is decided."
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Old 12-23-2013, 7:28 PM
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A Motion for Preliminary Injunction was filed today.


Evidence and declarations filed in support of the motion can be viewed here.

Last edited by CMonfort; 12-23-2013 at 10:56 PM..
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Old 12-23-2013, 9:03 PM
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Ok, so does filing "a case for declaratory and injunctive relief" have any impact on enforcement prior to a decision? A visit the range in Sunnyvale allot and dont want to lose any mags or get into any trouble after march '14 while inside city limits. When is Palmer vs. DC expected to conclude?

What range is in Sunnyvale?
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Old 12-23-2013, 9:58 PM
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What range is in Sunnyvale?
He's probably referring to the Sunnyvale Rod and Gun Club which is not
actually in Sunnyvale (Cupertino).
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Old 12-24-2013, 6:53 AM
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He's probably referring to the Sunnyvale Rod and Gun Club which is not
actually in Sunnyvale (Cupertino).
That was my thought. A Cupertino address but outside the city limits on county land.
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Old 12-24-2013, 11:32 AM
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Originally Posted by putput View Post
U.S. Firearms Company v. Sunnyvale is the state preemption suit.

It's not double jeopardy, just an opportunity for the city to lose twice...
And also an opportunity for the city to waste more money on defending its unconstitutional laws.

And at a time when they are looking for more money too.
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