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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 05-12-2014, 4:33 PM
flyonwall flyonwall is offline
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Default Birdt gets solid ruling against San Bernardino SO

https://www.dropbox.com/s/jcptnxafv1...SD%20Order.pdf

https://www.dropbox.com/s/5r0xjwo1dz...te%20order.pdf

Court got tired of sheriff denying 2a protects ccw and orders production of policies and statistics.

Last edited by flyonwall; 05-12-2014 at 5:09 PM..
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Old 05-12-2014, 4:52 PM
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a little more context might be beneficial.

many people are going to see SBSO and wonder San Bernardino, Santa Barbara, San Benito?

just saying San Bernardino SO and John Birdt in your OP would probably have helped.
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Old 05-12-2014, 4:57 PM
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birdt

quote from civil minutes

"
SBSD also shall produce any records or policies of
what hearing or appeal procedure exists, if any, for Plaintiff to challenge the denial of his
application. Additionally, SBSD shall produce any readily available statistics for the last two
years on the number of concealed weapon permit applications submitted, the number granted
and the number rejected, and the reasons given for granting or rejecting the applications.

The Court also issues an ORDER TO SHOW CAUSE why Plaintiff is not entitled by due
process to a hearing or appeal procedure to challenge the denial of his application, assuming
none exist. SBSD shall file its brief by June 16, 2014. Plaintiff shall file a response on or
before July 15, 2014.

cc: Parties
:
I
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Old 05-12-2014, 4:57 PM
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Quote:
Originally Posted by ke6guj View Post
a little more context might be beneficial.

many people are going to see SBSO and wonder San Bernardino, Santa Barbara, San Benito?

just saying San Bernardino SO and John Birdt in your OP would probably have helped.
In the title would be even better.

Just select "Edit" near the bottom right of the OP, then, when a new window opens, select "Advanced" and another new window will open and there you can edit the title of this thread.

Thx!

Re. this thread's topic: I'm happy for any slapping anti CLEOs get in this state!
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Old 05-12-2014, 5:10 PM
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much better title.
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Old 05-12-2014, 5:20 PM
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The SBSO, when "good cause" got slapped down they now claim GMC.
This is going to be interesting. The court stated that the guy is a member of multiple bar associations and has no criminal history so why does he not have GMC?

Next front to fight like we have said is GMC.
But let's look at the moral character of those with badges why don't we?
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Old 05-12-2014, 5:24 PM
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So is the point of this case to force the Sheriff into full disclosure of denial and explanation, then issue the CCW, or just the explanation or both (hopefullly!)?
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Old 05-12-2014, 5:31 PM
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This is just one of many pending cases against San Bernardino, Ventura and Los Angeles to get them to follow the law.
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Old 05-12-2014, 5:32 PM
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Peruta is effecting all carry cases in CA.
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Old 05-12-2014, 6:04 PM
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Quote:
Originally Posted by dantodd View Post
Peruta is effecting all carry cases in CA.
This is the recap page.
http://ia902509.us.archive.org/26/it...10.docket.html

Peruta solely dealt with Sheriff Gore's application of the "good cause" requirement. From the sounds of it, this litigation has to do with SB's application of the good moral character requirement. That is going to be the new pretext counties use to deny carry permits assuming en banc is denied in Peruta.


Read that order with the Peruta opinion in mind. On February 13th, 2014 Peruta is released. Accordingly SB can not use "good cause" as justification for denying Jon his permit. On February 14th, 2014 the County proclaims, for the first time,, that Jon's permit was denied for good moral character not good cause. The County just helped Birdt out as far as I am concerned. By doing so it made the legal issue in this case into a novel one dealing with SB's application of the GMC requirement. This has turned into a very significant case.

Last edited by wolfwood; 05-12-2014 at 7:06 PM..
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Old 05-12-2014, 7:32 PM
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Of course, as the Court points out, this litigation is premature. And it will likely be an obstacle to professional civil rights litigators when it is actually time to bring these cases. But hey, when has something like that ever stopped the Birdts of the world.

On a side note, I'm glad to see the third string white knighting for one another. Sure you guys are a hindrance to gaining back our full 2A rights, but nothing beats that warm feeling I get seeing you guys try SO hard.
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Old 05-12-2014, 7:38 PM
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Did I or did I not win my appeal?
On my second appeal did the Defendants concede on most of the issues?
I won't bring up what actually happened out of professional courtesy but you know what happened so all I will say is enjoy your ammunition rights.
Courtesy of me not your "professionals".

Last edited by wolfwood; 05-12-2014 at 8:34 PM..
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Old 05-12-2014, 7:53 PM
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Perhaps someday we can all add to our resume first tier colossal messes like Peterson and Nordyke, but until then we will have to settle for wins and progress such as this mediocrity.
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Old 05-12-2014, 8:45 PM
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Interesting case. I perceive the SBSO has boxed themselves into a corner with an unwinnable argument.
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Old 05-12-2014, 9:54 PM
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Quote:
Originally Posted by Tincon View Post
Of course, as the Court points out, this litigation is premature. And it will likely be an obstacle to professional civil rights litigators when it is actually time to bring these cases. But hey, when has something like that ever stopped the Birdts of the world.

On a side note, I'm glad to see the third string white knighting for one another. Sure you guys are a hindrance to gaining back our full 2A rights, but nothing beats that warm feeling I get seeing you guys try SO hard.
Are you saying this could hold up Peruta? Just asking.
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Old 05-12-2014, 11:35 PM
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Originally Posted by taperxz View Post
Are you saying this could hold up Peruta? Just asking.
No, more likely the other way around.
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Old 05-12-2014, 11:54 PM
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Excerpt:
Case 5:13-cv-00673-VAP-JEM Document 46 Filed 05/12/14 Page 8 of 14 Page ID #:340
Lines 26-27
As Plaintiff points out, however, this Court in its September 30, 2013 R&R already rejected
SBSD’s argument that there is no constitutional right to carry a concealed weapon.


A plain reading of this sentence indicates that U.S. District Court, Central District of California, Riverside determined that carry of concealed weapon is a constitutional right. And this determination was made almost 6 months prior to the Peruta decision by the 9th Circuit.

I truly would like to know what the R&R actually states regarding this excerpt.
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Old 05-13-2014, 5:44 AM
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Quote:
Originally Posted by wolfwood View Post
Did I or did I not win my appeal?
On my second appeal did the Defendants concede on most of the issues?
I won't bring up what actually happened out of professional courtesy but you know what happened so all I will say is enjoy your ammunition rights.
Courtesy of me not your "professionals".
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Originally Posted by flyonwall View Post
Perhaps someday we can all add to our resume first tier colossal messes like Peterson and Nordyke, but until then we will have to settle for wins and progress such as this mediocrity.
Ouch!
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Old 05-13-2014, 5:53 AM
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Quote:
Originally Posted by Tincon View Post
No, more likely the other way around.
GMC was on the table in Richards and then conceded/dropped/whatever they did.

I'm confused at the comments only because this case addresses GMC which may need to dealt with by very rogue sheriffs. I doubt very many of them will use GMC to deny.
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Old 05-13-2014, 6:43 AM
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Quote:
Originally Posted by capoward View Post
Excerpt:
Case 5:13-cv-00673-VAP-JEM Document 46 Filed 05/12/14 Page 8 of 14 Page ID #:340
Lines 26-27
As Plaintiff points out, however, this Court in its September 30, 2013 R&R already rejected
SBSD’s argument that there is no constitutional right to carry a concealed weapon.


A plain reading of this sentence indicates that U.S. District Court, Central District of California, Riverside determined that carry of concealed weapon is a constitutional right. And this determination was made almost 6 months prior to the Peruta decision by the 9th Circuit.

I truly would like to know what the R&R actually states regarding this excerpt.

I'm not seeing the words, "alleged," "purported," or "claimed" in front of the words "Second Amendment Rights" either. Looks very good to me.

And it looks like Birdt is GTG for a 1983 action as well.

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  #21  
Old 05-13-2014, 7:12 AM
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Here is the prior ruling:
https://www.dropbox.com/s/suf5mcjr1u...ow_temp.pl.pdf
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Old 05-13-2014, 7:15 AM
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The third issue- residency is also being addressed now in Ventura so hopefully Gore throws the state under the bus tomorrow, mandate issues and 9th orders lasd/Lapd to comply immediately (those cases are fully briefed in 9th but stayed after Peruta meaning they will likely do what they did in Richards- reverse/remand per Peruta).
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Old 05-13-2014, 7:49 AM
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Quote:
Originally Posted by e90bmw View Post
The court stated that the guy is a member of multiple bar associations and has no criminal history so why does he not have GMC?
and I agree that the morals of many members of law enforcement are a shame.

Dan K.
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Old 05-13-2014, 8:01 AM
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Quote:
Originally Posted by flyonwall View Post
WHOA!

"Here, Defendant argues that Eleventh Amendment immunity applies to the actions of
the SBCSD because “[t]o declare Defendant’s policy unconstitutional would be to declare
the state law invalid” because SBCSD’s policy is “a direct result and reflection of [the
relevant sections of the] California Penal Code[.]” (Motion at 10.) According to Defendant,
“the state is the real party in interest in the present case as the Sheriff’s Department (in
following state law) is acting as an agent of the state.”
(Motion at 10.) Defendant’s
contentions are unpersuasive.
Defendant has provided no authority – indeed the Court could find none – in support
of its conclusion that the SBCSD acts as an “arm of the state” when enforcing county
concealed weapon policies.
Cf. Walker v. County of Santa Clara, 2005 WL 2437037, at *4
(N.D. Cal. 2005) (California sheriffs act as state officers while performing state law
enforcement duties such as investigating possible criminal activity). Accordingly, the Motion
to Dismiss is denied on this ground."




Can the 9th use this ruling regarding the intervenor request by the AG in Peruta?
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Old 05-13-2014, 8:15 AM
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Alas, the matter does not end there. In its February 25, 2014 opposition to Plaintiff’s
Application for TRO and a hearing on a preliminary injunction, SBSD for the first time
asserts that Plaintiff’s request for a concealed weapon permit was denied on “moral
standing” grounds, not lack of “good cause” grounds. The declaration of Sarah Hendrick
states the application was denied on “moral character” reasons. Neither the opposition nor
the declaration provide any explanation or factual basis for SBSD’s lack of moral character
assertion."

"Plaintiff also may wish to depose the SBSD person most
knowledgeable about the denial of his application before refiling the MSJ."

"Plaintiff may wish to amend the FAC to name as a defendant the person
who denied his application."

"because of
SBSD’s unexplained silence on the reason for its denial of Plaintiff’s application until after
the FAC was filed, Plaintiff is entitled to amend the FAC to name appropriate SBSD
personnel necessary to state an individual claim for relief"


I am not a legal expert, in fact just the opposite,

but this looks like they are suggesting that Sarah Hendrick should be added as a separate defendant. I feel sorry for her.
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Old 05-13-2014, 8:42 AM
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Originally Posted by 71MUSTY View Post
Alas, the matter does not end there. In its February 25, 2014 opposition to Plaintiff’s
Application for TRO and a hearing on a preliminary injunction, SBSD for the first time
asserts that Plaintiff’s request for a concealed weapon permit was denied on “moral
standing” grounds, not lack of “good cause” grounds. The declaration of Sarah Hendrick
states the application was denied on “moral character” reasons. Neither the opposition nor
the declaration provide any explanation or factual basis for SBSD’s lack of moral character
assertion."

"Plaintiff also may wish to depose the SBSD person most
knowledgeable about the denial of his application before refiling the MSJ."

"Plaintiff may wish to amend the FAC to name as a defendant the person
who denied his application."

"because of
SBSD’s unexplained silence on the reason for its denial of Plaintiff’s application until after
the FAC was filed, Plaintiff is entitled to amend the FAC to name appropriate SBSD
personnel necessary to state an individual claim for relief"


I am not a legal expert, in fact just the opposite,

but this looks like they are suggesting that Sarah Hendrick should be added as a separate defendant. I feel sorry for her.
Can you give a link/source for your quotes? I'm not sure where to look. Either that or I just missed them (which is entirely possible, lol).

EDIT: I see the filing you reference on the Recap list, but it doesn't seem to be available for download ...
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Old 05-13-2014, 8:48 AM
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Quote:
Originally Posted by 71MUSTY View Post
Alas, the matter does not end there. In its February 25, 2014 opposition to Plaintiff’s
Application for TRO and a hearing on a preliminary injunction, SBSD for the first time
asserts that Plaintiff’s request for a concealed weapon permit was denied on “moral
standing” grounds, not lack of “good cause” grounds. The declaration of Sarah Hendrick
states the application was denied on “moral character” reasons. Neither the opposition nor
the declaration provide any explanation or factual basis for SBSD’s lack of moral character
assertion."

"Plaintiff also may wish to depose the SBSD person most
knowledgeable about the denial of his application before refiling the MSJ."

"Plaintiff may wish to amend the FAC to name as a defendant the person
who denied his application."

"because of
SBSD’s unexplained silence on the reason for its denial of Plaintiff’s application until after
the FAC was filed, Plaintiff is entitled to amend the FAC to name appropriate SBSD
personnel necessary to state an individual claim for relief"


I am not a legal expert, in fact just the opposite,

but this looks like they are suggesting that Sarah Hendrick should be added as a separate defendant. I feel sorry for her.
This is all good stuff.....this is the kind of thing that will motive Sheriff's and LE staff to start insisting the state legislature make CCW issuance a centrally issued state permit. LE staff aren't gonna want to get sued for this stuff on a regular basis and Sheriffs wont want the overall headache anymore.
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Old 05-13-2014, 8:56 AM
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Originally Posted by Untamed1972 View Post
This is all good stuff.....this is the kind of thing that will motive Sheriff's and LE staff to start insisting the state legislature make CCW issuance a centrally issued state permit. LE staff aren't gonna want to get sued for this stuff on a regular basis and Sheriffs wont want the overall headache anymore.
^^ Yup, REAL GOOD STUFF, I think your conclusions are right-on as well, especially with a 1983 action where qualified immunity is pierced. Once that happens and precedent is set, all hell will break loose!
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Old 05-13-2014, 9:01 AM
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Interesting point, once they identify all the people involved in the process, the courts suggests they are all proper defendants. Another interesting point is McMahon gives numbers of permits granted to those who get interviewed, but he didn't interview Birdt, he just sent a denial without any inquiry...now he has a press release that says good cause is self defense but county counsel says specific need is required. Clearly there is a disconnect.
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Old 05-13-2014, 9:24 AM
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It never ceases to amaze me the disconnect Pro Gun Control counsel will have, or politicians for that matter will have when trying to take away OUR 2ndA rights. "Flyonwall" comment almost had me laughing; however, the matter is too serious to laugh at because the Law Abiding Citizens of California who are Pro 2ndA are adversely affected. Seems no matter what the courts decides if it does not align with their thoughts on Gun Control they will do everything in their power to circumvent the court’s decision.
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Old 05-13-2014, 9:34 AM
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Quote:
Originally Posted by flyonwall View Post
Interesting point, once they identify all the people involved in the process, the courts suggests they are all proper defendants. Another interesting point is McMahon gives numbers of permits granted to those who get interviewed, but he didn't interview Birdt, he just sent a denial without any inquiry...now he has a press release that says good cause is self defense but county counsel says specific need is required. Clearly there is a disconnect.
Maybe find out who was interviewed and granted a permit. Then cross check with list of donors.
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Old 05-13-2014, 9:48 AM
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Quote:
Originally Posted by RP1911 View Post
Maybe find out who was interviewed and granted a permit. Then cross check with list of donors.
They tried that in the early rounds of Peruta, and it was just messy to say the least.

When dealing with something that has now been established as a fundamental right, all that kinda becomes moot. The burden of proof is on the sheriff to defend why he is denying someone their civil rights. And now that "bear outside the home" has been established, it's going to be pretty hard to justify why someone who is legally able to purchase a firearm to "keep" in their home, is legally precluded from "bearing it" outside the home.
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  #33  
Old 05-13-2014, 9:52 AM
capoward capoward is offline
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Thanks flyonwall for posting the link; it’s a very interesting read.

I believe California residents in the Central District can thank John E. McDermott, U.S. Magistrate Judge for his very clear analysis/read of the briefs as well as California’s statutory impact on the 2nd Amendment “Bear” relative to the SCOTUS discussion and decision in Heller.

After reading the documentation of both cases, I wonder how much bearing the various Report and Recommendation of United States Magistrate Judge followed by the various decisions and orders of Central District Judge had on the panel decision in Peruta.

At least to me, an interesting side note - The District Judge obtained her JD from UC Berkeley, Boalt Hall School of Law, whereas the Magistrate Judge obtained his JD from Harvard Law.
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  #34  
Old 05-13-2014, 10:06 AM
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After reading the docs provided i am quite impressed with this case. Hope is stays the course and does well.
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  #35  
Old 05-13-2014, 10:12 AM
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Originally Posted by Southwest Chuck View Post
Can you give a link/source for your quotes? I'm not sure where to look. Either that or I just missed them (which is entirely possible, lol).

EDIT: I see the filing you reference on the Recap list, but it doesn't seem to be available for download ...
You have to accept the program for download, it is a .pdf driven program that does it.
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CA CCW 2013 | Applied in person 11/4 | App approved 12/10 | Interview 12/17 | Denial (GC) Ltr. 1/14 | AZ CCW 2014 | Applied via mail 03/20 | Entered by DPS 05/02 | Approved 5/10 | Received 5/16 | OR CHL 2014 | Applied in person 04/17 | Approved 4/30 | Received 5/9 | WA CPL 2014 | Applied in person 04/18 | Approved 6/9 | Received 6/12 | NV CFP 2014 | Applied 09/25 | Received 1/15 | UT CFP 2015 | Applied 11/26 | Received 1/16
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  #36  
Old 05-13-2014, 10:15 AM
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Originally Posted by 71MUSTY View Post
Alas, the matter does not end there. In its February 25, 2014 opposition to Plaintiff’s
Application for TRO and a hearing on a preliminary injunction, SBSD for the first time
asserts that Plaintiff’s request for a concealed weapon permit was denied on “moral
standing” grounds, not lack of “good cause” grounds. The declaration of Sarah Hendrick
states the application was denied on “moral character” reasons. Neither the opposition nor
the declaration provide any explanation or factual basis for SBSD’s lack of moral character
assertion."

"Plaintiff also may wish to depose the SBSD person most
knowledgeable about the denial of his application before refiling the MSJ."

"Plaintiff may wish to amend the FAC to name as a defendant the person
who denied his application."

"because of
SBSD’s unexplained silence on the reason for its denial of Plaintiff’s application until after
the FAC was filed, Plaintiff is entitled to amend the FAC to name appropriate SBSD
personnel necessary to state an individual claim for relief"


I am not a legal expert, in fact just the opposite,

but this looks like they are suggesting that Sarah Hendrick should be added as a separate defendant. I feel sorry for her.
Right, and I also feel sorry for her since she was simply doing her job and FOLLOWING the Sheriff's BS CCW policy. The SHERIFF should be the liable party here since the SHERIFF is the Agency Head who SETS policy with his/her signature!
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CA CCW 2013 | Applied in person 11/4 | App approved 12/10 | Interview 12/17 | Denial (GC) Ltr. 1/14 | AZ CCW 2014 | Applied via mail 03/20 | Entered by DPS 05/02 | Approved 5/10 | Received 5/16 | OR CHL 2014 | Applied in person 04/17 | Approved 4/30 | Received 5/9 | WA CPL 2014 | Applied in person 04/18 | Approved 6/9 | Received 6/12 | NV CFP 2014 | Applied 09/25 | Received 1/15 | UT CFP 2015 | Applied 11/26 | Received 1/16
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  #37  
Old 05-13-2014, 10:20 AM
capoward capoward is offline
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Originally Posted by e90bmw View Post
The SBSO, when "good cause" got slapped down they now claim GMC.
This is going to be interesting. The court stated that the guy is a member of multiple bar associations and has no criminal history so why does he not have GMC?
The court is questioning “why the citizenry is required to demonstrate GMC in excess of that for an officer of the court?” After all, a licensed attorney in good standing has already established GMC with the state AND the judicial system.

The SBSO will lose their “GMC requirement” big time. As will the various Sheriffs when they try to exceed the boundaries of GMC as already decided relative to the numerous licensed occupations; their disqualifiers of disgruntled neighbors, traffic tickets (paid or not), bankruptcy filing(s), tax liens (paid or not), etc. will quickly fall by the wayside.

I’m actually happy to see an “attorney in good standing” being the ‘Ginny pig’ relative to GMC, with apologies for having to go through the mess to begin with.
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  #38  
Old 05-13-2014, 10:21 AM
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Originally Posted by capoward View Post
The court is questioning “why the citizenry is required to demonstrate GMC in excess of that for an officer of the court?” After all, a licensed attorney in good standing has already established GMC with the state AND the judicial system.

The SBSO will lose their “GMC requirement” big time. As will the various Sheriffs when they try to exceed the boundaries of GMC as already decided relative to the numerous licensed occupations; their disqualifiers of disgruntled neighbors, traffic tickets (paid or not), bankruptcy filing(s), tax liens (paid or not), etc. will quickly fall by the wayside.

I’m actually happy to see an “attorney in good standing” being the ‘Ginny pig’ relative to GMC, with apologies for having to go through the mess to begin with.
Agreed - this could be a significant game-changer for 2A/RKBA in CA.
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CA CCW 2013 | Applied in person 11/4 | App approved 12/10 | Interview 12/17 | Denial (GC) Ltr. 1/14 | AZ CCW 2014 | Applied via mail 03/20 | Entered by DPS 05/02 | Approved 5/10 | Received 5/16 | OR CHL 2014 | Applied in person 04/17 | Approved 4/30 | Received 5/9 | WA CPL 2014 | Applied in person 04/18 | Approved 6/9 | Received 6/12 | NV CFP 2014 | Applied 09/25 | Received 1/15 | UT CFP 2015 | Applied 11/26 | Received 1/16
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  #39  
Old 05-13-2014, 10:29 AM
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Quote:
Originally Posted by wolfwood View Post
This is the recap page.
http://ia902509.us.archive.org/26/it...10.docket.html

Peruta solely dealt with Sheriff Gore's application of the "good cause" requirement. From the sounds of it, this litigation has to do with SB's application of the good moral character requirement. That is going to be the new pretext counties use to deny carry permits assuming en banc is denied in Peruta.


Read that order with the Peruta opinion in mind. On February 13th, 2014 Peruta is released. Accordingly SB can not use "good cause" as justification for denying Jon his permit. On February 14th, 2014 the County proclaims, for the first time,, that Jon's permit was denied for good moral character not good cause. The County just helped Birdt out as far as I am concerned. By doing so it made the legal issue in this case into a novel one dealing with SB's application of the GMC requirement. This has turned into a very significant case.
You actually don't understand the impact of the Peruta ruling on this? Or are you just being circumspect?
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  #40  
Old 05-13-2014, 10:38 AM
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Well a Clock is right at least twice a day and this ruling works. We'll take it. While everyone is handwringing about the "First String Clique" the third stringer gets a sold touchdown while no one is looking.
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