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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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  #121  
Old 04-21-2014, 10:15 PM
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Originally Posted by taperxz View Post
That's being intellectually dishonest with ones self and for all intents and purposes, setting yourself up for a false positive.
You guys need to get a room.
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  #122  
Old 04-21-2014, 10:19 PM
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Nonetheless, a categorical standard would not automatically admit full auto protection.
Not automatically, but it is not going to be completely out of question and I'm not sure what Gura did will have much effect on the ruling that determines the fate of full auto.

Here is where the interpretation of "long standing" will be critical. Chicago tried it unsuccessfully with their handgun prohibition of 30 years. NFA is 80 years old, which is the same order of magnitude.

As a side issue, my interest in full auto is primarily due to the highly effective ban process: (1) ban *future* sales; (2) register existing; (3) control transfer; (4) grandfather in existing; (5) watch availability slowly go to zero; (6) win cultural war where the type of firearm is considered a "long shot."

This is unfortunately the same recipe Feinstein wanted with semi-auto rifles and her AWB. It was an attempt of replicating a very successful long term ban. If she managed to extend it in 2004 and we didn't have Heller in 2008, the EBR-s would in a few decades look as far fetched as full auto. This is why we must try to overturn the NFA - to prevent future attempts using the same mechanism.
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  #123  
Old 04-21-2014, 11:08 PM
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That's being intellectually dishonest with ones self and for all intents and purposes, setting yourself up for a false positive.
As opposed to setting myself up for a false negative?
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  #124  
Old 04-21-2014, 11:22 PM
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Well no, Heller makes it clear that full auto is (at least potentially) outside the categorical protection of the Second Amendment (thanks to Gura throwing it under the bus).
Which brief contained Gura's concession on that. I'd like to read the text for myself.

Also, a question: how would Gura know whether or not that concession was necessary to secure a victory? More to the point, in what way could Gura frame the argument in such a way as to not challenge the NFA as a side effect of his argument?
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  #125  
Old 04-21-2014, 11:33 PM
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Which brief contained Gura's concession on that. I'd like to read the text for myself.
I believe it was in orals.
  #126  
Old 04-22-2014, 12:11 AM
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We don't know yet. And we don't know whether Heller 5 would have been Heller 4 if Gura hadn't conceded some ground (by no means am I condoning it, just looking at it in retrospect.)

Also, look at the development of gay rights. They certainly threw under the bus the whole concept of "marriage" in the beginning. Full auto can, similarly, be back in play down the road.
"They" did not do any such thing. The 1970's lawsuits over marriage post-Loving certainly are not indicator of "throwing under the bus".
  #127  
Old 04-22-2014, 1:16 AM
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"They" did not do any such thing. The 1970's lawsuits over marriage post-Loving certainly are not indicator of "throwing under the bus".
It was *later*. The court battles, and especially the PR, didn't start with it. Quite the opposite. It was intentionally downplayed in the early stages to get more public support.

Also, "they" was not meant to be exclusionary, just a way to refer to activists.
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  #128  
Old 04-22-2014, 1:50 AM
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I believe it was in orals.
Correct:
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Justice Kennedy: That are not appropriate to–

Mr. Gura: That are not appropriate to civilian use.

Justice Ginsburg: For example?

Mr. Gura: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of. . . .

Justice Ginsburg: But why wouldn’t the machine gun qualify?

General Clement told us that’s standard issue in the military.

Mr. Gura: –But it’s not an arm of the type that people might be expected to possess commonly in ordinary use.
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  #129  
Old 04-22-2014, 4:04 AM
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Let's be more precise. The regulation must serve a compelling government interest, so it's not enough to say "public safety" is a "compelling government interest." Instead, bans targeting law abiding must be proven to serve the compelling government interest of public safety.

That's why we can have laws banning brandishing or carrying in one's hand, but we can't have laws banning safe carrying in public by ordinary law abiding people.
Public safety and national security were no less compelling government interests at the time of founding when the words 'shall not be infringed' were chosen. A result that's contra the obvious intent of the amendment ought to be revisited for its methodology.

If we agree constitutionally that blacks and women should have the same right to vote as everyone else, but then allow regulations that prevent it, then the regulations would have failed constitutional muster. Kachalsky and Woolard fell victim to such Alice in Wonderland logic when their results gave lie to their thinking.
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  #130  
Old 04-22-2014, 5:54 AM
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Mr. Gura: –But it’s not an arm of the type that people might be expected to possess commonly in ordinary use
...yet.

I'm not sure if the transcript missed the word "Solicitor," or if this was intentional
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General Clement told us that’s standard issue in the military.
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  #131  
Old 04-22-2014, 7:01 AM
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Mr. Gura: –But it’s not an arm of the type that people might be expected to possess commonly in ordinary use
I don't see this is throwing anything under the bus, but maybe there's a lot of context I'm missing. Given the last 80 years of the NFA, Gura's statement is quite accurate -- it's certainly not something people might be expected to commonly possess in ordinary use.

One of you more legally-inclined can hopefully explain to me: if wolfwood throws strict scrutiny under the bus, or if the antis are conceding strict scrutiny for the RKBA in the home, or Gura throws machine guns under the bus -- these are all just statements made by some lawyers in specific cases, these aren't biding court opinions, right?

IOW, what difference does it make if a lawyer says the sky is made of pineapples? As long as the opinion doesn't say that, is there a legal principle by which one lawyer's words still can have impact on a different case? Thanks for any edumacation
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  #132  
Old 04-22-2014, 7:25 AM
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Originally Posted by speedrrracer View Post
I don't see this is throwing anything under the bus, but maybe there's a lot of context I'm missing. Given the last 80 years of the NFA, Gura's statement is quite accurate -- it's certainly not something people might be expected to commonly possess in ordinary use.
He also said that they "are not appropriate to civilian use."

But that's more like his opinion, though it probably colored his second statement about ordinary use, which is much more damaging to our rights.

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Originally Posted by speedrrracer View Post
One of you more legally-inclined can hopefully explain to me: if wolfwood throws strict scrutiny under the bus, or if the antis are conceding strict scrutiny for the RKBA in the home, or Gura throws machine guns under the bus -- these are all just statements made by some lawyers in specific cases, these aren't biding court opinions, right?

IOW, what difference does it make if a lawyer says the sky is made of pineapples? As long as the opinion doesn't say that, is there a legal principle by which one lawyer's words still can have impact on a different case? Thanks for any edumacation
Allow me to make a sports analogy. Let's say you have a football game. The outcome is formally decided by the referees, but is the result of two competing teams trying to score opposite goals. Now assume a player (or several players) on one of the teams decides to put the ball in his own team's goal. Do you think that will have an impact on the outcome?
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  #133  
Old 04-22-2014, 7:32 AM
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As a side issue, my interest in full auto is primarily due to the highly effective ban process: (1) ban *future* sales; (2) register existing; (3) control transfer; (4) grandfather in existing; (5) watch availability slowly go to zero; (6) win cultural war where the type of firearm is considered a "long shot."

This is unfortunately the same recipe Feinstein wanted with semi-auto rifles and her AWB.
One could say that something similar has been happening with "large-capacity" (over 10) magazines in CA. The ruling upholding Sunnyvale magazine ban mentioned that the magazines in question had not been sold in CA for a number of years (or however the judge formulated it). So, yes, grandfathering is just a more politically palatable way to ban stuff - it is no way to preserve the rights long-term.

And then we can get into provisions where some grandfathered items can't be inherited upon the death of the owner. How much closer to outright confiscation can one really get?

Last edited by LostInSpace; 04-22-2014 at 8:05 AM..
  #134  
Old 04-22-2014, 7:58 AM
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Originally Posted by speedrrracer View Post
I don't see this is throwing anything under the bus, but maybe there's a lot of context I'm missing. Given the last 80 years of the NFA, Gura's statement is quite accurate -- it's certainly not something people might be expected to commonly possess in ordinary use.

One of you more legally-inclined can hopefully explain to me: if wolfwood throws strict scrutiny under the bus, or if the antis are conceding strict scrutiny for the RKBA in the home, or Gura throws machine guns under the bus -- these are all just statements made by some lawyers in specific cases, these aren't biding court opinions, right?

IOW, what difference does it make if a lawyer says the sky is made of pineapples? As long as the opinion doesn't say that, is there a legal principle by which one lawyer's words still can have impact on a different case? Thanks for any edumacation

Im not a lawyer, but I do there is a certain legal principle which precludes one from arguing one point, and then later arguing the opposite. But I don't know the extent of how its applied. But I don't think one statement in oral arguments rises to that level.
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  #135  
Old 04-22-2014, 8:56 AM
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Im not a lawyer, but I do there is a certain legal principle which precludes one from arguing one point, and then later arguing the opposite. But I don't know the extent of how its applied. But I don't think one statement in oral arguments rises to that level.
One cannot contest something to which they have previously stipulated. This is specifically on a single case. However; judges have a decent memory and the oral arguments are all available to the court so if a party, or an attorney plays two sides of an issue it may well not go unnoticed. That being said, there are plenty of good attorneys accepted to the SCOTUS bar and there are plenty of plaintiffs. A different attorney arguing for a different client will not be held to Mr. Gura's statement.
  #136  
Old 04-22-2014, 9:20 AM
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He also said that they "are not appropriate to civilian use."

But that's more like his opinion, though it probably colored his second statement about ordinary use, which is much more damaging to our rights.
emphasis mine

If you're saying it reduced the chances of winning, or increased the chances that the opinion contained unfavorable verbiage of some sort, I agree, but I'm asking if / how it effects court cases other than the case in which the statement(s) appeared, apart from effects on the opinion.


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Allow me to make a sports analogy. Let's say you have a football game. The outcome is formally decided by the referees, but is the result of two competing teams trying to score opposite goals. Now assume a player (or several players) on one of the teams decides to put the ball in his own team's goal. Do you think that will have an impact on the outcome?
Sure, you are right, but that's limited to just that game. In your analogy, the fact that player scored against his own team has no effect on the score in any subsequent game (ignoring mental issues). I'm asking if the unfavorable statements made by the lawyer in case A can have an impact in case B, assuming those unfavorable statements aren't reflected in the opinion from case A.

So if (e.g.) wolfwood throws strict scrutiny under the bus via his statements, but we win the case and the judge makes no such reference in the opinion, then we "got away with it" -- we escaped any negative consequences from wolfwood's statements, is that correct?
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  #137  
Old 04-22-2014, 9:39 AM
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Originally Posted by speedrrracer View Post
emphasis mine
If you're saying it reduced the chances of winning, or increased the chances that the opinion contained unfavorable verbiage of some sort, I agree, but I'm asking if / how it effects court cases other than the case in which the statement(s) appeared, apart from effects on the opinion.
To the extent it did have an effect on the opinion (you will notice even Scalia treats "M-16 rifles and the like" unfavorably) stare decisis means the effect will carry over to future cases.

Quote:
So if (e.g.) wolfwood throws strict scrutiny under the bus via his statements, but we win the case and the judge makes no such reference in the opinion, then we "got away with it" -- we escaped any negative consequences from wolfwood's statements, is that correct?
It depends on the statement, and other factors. With something like a standard of scrutiny it is fairly easy to see the harm done. If the court does not adopt it, then we probably "got away with it." Even then however, there is collateral damage. If another case is being argued before the same panel they may have to take time undoing the damage (before any opinion is issued) which detracts from time spent on other key arguments.

But with something like what Gura did, we may not see the effects of the damage until an NFA case reaches SCOTUS. Even then it may not be crystal clear what the effect was. The reason being, he trashed machine guns even though machine guns were not at issue in Heller (which is a large part of the reason it was so stupid). This is true even if another lawyer is arguing the later case.

Keep in mind, the law is primarily about persuasive writing and rhetoric. You present your analysis to the court and try to convince them it is the best and proper analysis. If you are making arguments which support the other team, their position becomes much stronger. Judges are human beings, they don't forget everything they have heard after each case. And of course, there is only one SCOTUS.
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  #138  
Old 04-22-2014, 10:04 AM
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Im not a lawyer, but I do there is a certain legal principle which precludes one from arguing one point, and then later arguing the opposite. But I don't know the extent of how its applied. But I don't think one statement in oral arguments rises to that level.
The fancy word is "estoppel."

For example, the CAAG's office argued their way out of Mehl by claiming the state has no interest -- the policy is purely up to the sheriff, and CAAG basically doesn't care, so Mehl can't sue the state. Now, CAAG is claiming the opposite in Peruta.
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  #139  
Old 04-22-2014, 10:29 AM
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One could say that something similar has been happening with "large-capacity" (over 10) magazines in CA.
It's not just "similar" - it's exactly the same play from the same rulebook.

As far as I can tell, that's one ban mechanism that has been quite effective in the antis' cultural war, but we are fighting back in courts on all fronts. All we need is *some* positive rulings on "ban+grandfather" to put a stop to it.
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  #140  
Old 04-22-2014, 10:45 AM
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The fancy word is "estoppel."

For example, the CAAG's office argued their way out of Mehl by claiming the state has no interest -- the policy is purely up to the sheriff, and CAAG basically doesn't care, so Mehl can't sue the state. Now, CAAG is claiming the opposite in Peruta.
Yea.....that's what I meant
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  #141  
Old 04-22-2014, 11:22 AM
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To the extent it did have an effect on the opinion (you will notice even Scalia treats "M-16 rifles and the like" unfavorably) stare decisis means the effect will carry over to future cases.
Heller and McDonald dealt with establishing an individual right to self defense, not the militia purpose, which although now distinguished as a separate component to the right, is still the only enumerated purpose for the right. It makes the self defense purpose no less important, of course.

When the time comes to address the militia purpose, it will be a difficult argument indeed to make that the M16/M4 shouldn't be the most protected weapon in the land. it is the consummate American small arm. Americans have always had vast private arms commonality with our military. Only since 1986 have Americans been banned from buying new stock select-fire rifles.

The SCOTUS acknowledged the anti-tyranny purpose of the 2nd amendment in Heller, saying that while " . . . modern tanks and bombers may limit the degree of fit between the right announced in the second clause, and the militia purpose announced in the first clause, that it cannot change our interpretation of the right." (paraphrasing)

I recall the 9th circuit, when it first (briefly) incorporated the 2nd against the states (pre-McDonald) wrote at some length about the national security and anti-tyranny purpose for the amendment.

It may be too late in the day for a re-opening of NFA registration for select fire . . . I hope not. But it's hard to imagine a cogent argument that the semi-auto, civilian AR15 with factory capacity magazine isn't the obvious, ideal militia weapon. If it isn't, then what would be?
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  #142  
Old 04-22-2014, 11:44 AM
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It may be too late in the day for a re-opening of NFA registration for select fire . . . I hope not. But it's hard to imagine a cogent argument that the semi-auto, civilian AR15 with factory capacity magazine isn't the obvious, ideal militia weapon. If it isn't, then what would be?
But if they court truly does believe in the national security / anti-tyranny (even if by foreign invasion) how could they argue against a "militiaman" needing to possess something commensurate to what his enemy would be carrying?

Every American should be entitled to at least ONE select-fire rifle free of tax-stamp and registration.
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  #143  
Old 04-22-2014, 12:36 PM
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The full-auto mode of operation of any class of individual (i.e. NOT crew-served) weapon requires considerable skill and training to be used effectively on the battlefield. If I was given command of a "militia" formed of conscript or non-combat trained soldiers, the first thing I would do is prohibit the use of fully-auto mode on weapons so equipped.

My career in the infantry pre-dates the current era of COIN in West Asia, but when I served, the use of full-auto was fairly rare in the doctrine of combat operations. Things may be different now, but I expect there is a reason that the M16A2 and it's successors often have 3-round burst instead of auto.
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  #144  
Old 04-22-2014, 8:02 PM
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Recent vet, can confirm full-auto is useless and rarely used.
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  #145  
Old 04-22-2014, 8:18 PM
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Its always great when our betters (aka the "smart/right" people) decide to sacrifice part of the right to secure some other part.

I have the training to have a chance (a small chance), armed with the weapons legally available to me if/when my government comes at me with automatic weapons. Most folks don't. The fact that most folks also don't have the training to make good use of an automatic weapon (e.g. militia duty) is a separate topic for discussion.
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  #146  
Old 04-22-2014, 8:55 PM
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Recent vet, can confirm full-auto is useless and rarely used.
I does sometimes serve a purpose: Suppressing (keeps their heads down) fire.
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Old 04-22-2014, 9:46 PM
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What happened to April 21? I thought we would hear about something by now...
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Old 04-22-2014, 9:48 PM
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What happened to April 21? I thought we would hear about something by now...
Drake was relisted for the 4/25 conference.
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Old 04-22-2014, 11:36 PM
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The fancy word is "estoppel."

For example, the CAAG's office argued their way out of Mehl by claiming the state has no interest -- the policy is purely up to the sheriff, and CAAG basically doesn't care, so Mehl can't sue the state. Now, CAAG is claiming the opposite in Peruta.
Does estopel work against only the government, or a plaintiff in a single case. I.e. could a plaintiff argue one thing to win one case, and another to win another case?
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Old 04-23-2014, 12:35 AM
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Does estopel work against only the government, or a plaintiff in a single case. I.e. could a plaintiff argue one thing to win one case, and another to win another case?
Generally, no. Estoppel works even for statements outside of court. So if you say one thing publicly, you can't say something else in court. Also, if a court finds something to be a fact (based on your statement or not) and includes it in a decision, it can be "judicially noticeable" in some courts, which means it is an incontestable fact.
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Old 04-23-2014, 4:07 AM
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Does estopel work against only the government, or a plaintiff in a single case. I.e. could a plaintiff argue one thing to win one case, and another to win another case?
It depends. Prosecutors do it all the time and get away with it.
There is issue preclusion, claim preclusion, res judicata, and a bunch of other crap that was on some barbri outline somewhere.

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Generally, no. Estoppel works even for statements outside of court. So if you say one thing publicly, you can't say something else in court. Also, if a court finds something to be a fact (based on your statement or not) and includes it in a decision, it can be "judicially noticeable" in some courts, which means it is an incontestable fact.
Some of that is permissive CEC 452, some are considered party admissions, and a lot is taken with a grain of salt.
Another component with regard to out of court statements is detrimental reliance; here I think they are just talking about legal arguments.
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Old 04-23-2014, 6:01 AM
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Generally, no. Estoppel works even for statements outside of court. So if you say one thing publicly, you can't say something else in court. Also, if a court finds something to be a fact (based on your statement or not) and includes it in a decision, it can be "judicially noticeable" in some courts, which means it is an incontestable fact.
----

A couple of things. First, Estoppel is generally not applicable against the Government. In a criminal case, one might be able to make a due process argument if the Government applies the law inconsistently or if a Government official provided incorrect advise on which someone detrimentally relied. As a general matter, however, estoppel--an equitable remedy--is not applicable against the Government. Therefore, there is nothing to prevent the Government from arguing inconsistent theories in different cases. As a practical matter, Government attorneys usually agree on policy and usually apply it evenly across similarly situated cases. Double jeopardy is a special -- and very narrow -- brand of estoppel, res judicata, etc., that is based in the Fifth Amendment. It is the only exception to the general rule I stated above.

Second, as a doctrinal matter, a party can never make a concession that applies to another party in a different proceeding. Estoppel, res judicata, collateral estoppel and even double jeopardy only apply as between the same parties.

Additionally, it is not accurate to state that a party's out of court statements will always bind that party. Such statements can, in certain situations be deemed admissions, but that is usually in the context of carving out exceptions to the heresay rule. A party that states "a" in a press conference or in an article is not automatically bound by that statement, though they could be cross-examined about it. Since a lawyer is never going to be cross-examine about his or her own client's case (except in rare circumstances not applicable to this discussion), whatever a lawyer says about a case outside of court or pleadings cannot be the subject of estoppel, res judicata, collateral estoppel, etc.

Having said all that, I'd certainly welcome case law or authority demonstrating that I am wrong. I will be the first to admit that I am not omniscient.

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Source of knowledge: I am an attorney, clerked for a federal judge and have done plenty of appellate work, including some in SCOTUS.
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Old 04-23-2014, 6:50 AM
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Thanks Vagun71 and welcome to Calguns.
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Old 04-23-2014, 6:53 AM
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First off, welcome to calguns Vagun71. Now...

I should have just done like fizux and said "it depends." Hard to sharpshoot that answer. But instead, I tried to give a brief general answer to a non-lawyer about what estoppel means. I didn't say anything about a criminal case, because that's totally irrelevant here.

But hey, I can sharpshoot too. Let's start with this:

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Originally Posted by vagun71 View Post
Additionally, it is not accurate to state that a party's out of court statements will always bind that party.
Well maybe not "always." But nothing is "always" true. As I said however, generally a party is bound by his or her out of court statements. Authority? Sure, how about the evidence code:

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Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it. Cal. Evid. Code § 623
And here is the California Supreme Court explaining how what it calls "equitable estoppel" works in practice:

Quote:
If, by its letter of March 14, asking plaintiff to proceed with his work under phase two of the contract, Bristol had induced plaintiff to believe that funds had been obtained, and if plaintiff had reasonably relied upon such representation, Bristol could not invoke the condition to defeat its contractual liability. Reasonable reliance resulting in a foreseeable prejudicial change in position is the essence of equitable estoppel, and therefore a compelling basis for preventing a party from invoking a condition that he represented as being satisfied. Parsons v. Bristol Dev. Co., 62 Cal. 2d 861, 869, 402 P.2d 839, 845 (1965)
Let's see, what else do we have...

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Originally Posted by vagun71 View Post
----
First, Estoppel is generally not applicable against the Government. In a criminal case, one might be able to make a due process argument if the Government applies the law inconsistently or if a Government official provided incorrect advise on which someone detrimentally relied. As a general matter, however, estoppel--an equitable remedy--is not applicable against the Government. Therefore, there is nothing to prevent the Government from arguing inconsistent theories in different cases.
Well that's not even "generally" correct. There are limitations on estoppel against the government where public policy concerns trump equity, but estoppel certainly does apply to the government.

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Whether an estoppel exists against the government should be tested generally by the same rules as those applicable to private persons. The government should not be permitted to avoid liability by tactics that would never be countenanced between private parties. The government should be an example to its citizens, and by that is meant a good example and not a bad one. Cruise v. City & Cnty. of San Francisco, 101 Cal. App. 2d 558, 565, 225 P.2d 988, 993 (1951)
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A state, as well as an individual, may be estopped where the necessary elements or grounds of estoppel are present (City of Los Angeles v. Cohn, 101 Cal. 373, 35 P. 1002; 31 C.J.S., Estoppel, § 138, p. 405); it may be estopped when acting in its proprietary capacity as distinguished from its governmental capacity (31 C.J.S., Estoppel, § 140, p. 413); and it may be *243 estopped by the acts of its public officials done in the exercise of powers expressly conferred by law, and by their acts or omissions when acting within the scope of their authority. People v. Gustafson, 53 Cal. App. 2d 230, 242-43, 127 P.2d 627, 634 (1942)

Quote:
Originally Posted by vagun71 View Post
----
Second, as a doctrinal matter, a party can never make a concession that applies to another party in a different proceeding. Estoppel, res judicata, collateral estoppel and even double jeopardy only apply as between the same parties.
Of your three statements this is the least incorrect, although I'm not sure I said anything to the contrary. But there are certainly exceptions, I pointed out one of them. And as a practical matter, if you are conceding one thing in discovery in one case, and denying it in another, you are going to have some credibility issues at a bare minimum.

Of course as fizux points out, we are mostly talking about legal arguments, and "generally" no one is held to those, at least not formally. But of course, it depends.
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Old 04-23-2014, 7:07 AM
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Welcome Vagun71. Looking forward to reading your analysis on upcoming cases.
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Old 04-23-2014, 7:18 AM
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Very interesting information. Since I am not a California attorney, I was not aware of CA law. Thank you for providing the citations. In the case of estoppel against the Government, that is exactly the opposite of the law where I practice, and represents a minority view. Of note, even the citation you present states that Government can only be estoppel when acting in a "proprietary capacity." Nevertheless, it is interesting and I appreciate the information.

But, as I said, I am not omniscient and I am always interested in learning!
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Old 04-23-2014, 7:29 AM
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Welcome Vagun71. Looking forward to reading your analysis on upcoming cases.
Thank you. I doubt I have anything to add to the Peruta or Drake discussions at this point that is anything other than idle speculation on my part. If I feel the need to chime in when there is actually something concrete to discuss, I will do so.
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Old 04-23-2014, 7:33 AM
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Of note, even the citation you present states that Government can only be estoppel when acting in a "proprietary capacity."
Better read that again (citations omitted, emphasis added):

Quote:
it may be estopped when acting in its proprietary capacity as distinguished from its governmental capacity; and it may be estopped by the acts of its public officials done in the exercise of powers expressly conferred by law, and by their acts or omissions when acting within the scope of their authority.
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Old 04-23-2014, 12:37 PM
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Guess I have to ask a few questions.

My reading the Peruta decision is that it does not overturn the governing statute, only limiting the issuing authority’s (the County Sheriff) arbitrary dismissal ‘the desire to carry concealed for self-protection’ as ‘Good Cause’.

Regarding the requested intervener status by the CA AG and others…
The 9th Cir. record reveals that the defendant, the Sheriff of San Diego County, has specifically notified the court that that office will not appeal the appellate decision.

I’ve noted within the various Peruta discussions (but haven’t read a specific case) that the CA AG has successfully argued in prior 9th Cir. concealed carry licensing cases that they as a State agent (agency) are not lawfully within the concealed carry licensing issuance schema because the state legislature by statute specifically designated the County Sheriffs as the licensing authority. Specifically that the County Sheriffs do not report to the AG, the AG has no lawful authority to control the discretion of each County Sheriff as to what they accept, or do not accept, to support Good Cause.

So if my understanding is correct regarding the lack of statutory impact and only a limitation on the Sheriff’s discretion to not accept – basically a desire for self-protection – as a Good Cause reason, and the only defendant in the case has lawfully removed them self from the case would not all requests for intervener status including the CA AG fall into a ‘private party arena’?

And if I’m correct regarding the ‘private party arena’ would not the 9th Circuits acceptance of any of the intervener requests supporting the defendants suffer the same, or a similar, spank as the 9th Cir. received from SCOTUS over the Prop 8 appeal – “ruling Wednesday private parties do not have "standing" to defend California's voter-approved ballot measure barring gay and lesbian couples from state-sanctioned wedlock.”

Sorry for the disjointedness of my reasoning and questions. Am I totally out in left field? Or is Peruta ripe for a denial of both the Brady and the CA AG intervener requests?
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Old 04-23-2014, 2:27 PM
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No, I think that's all pretty much spot on.

But Peruta is not opposing the CA AG intervention for the reason I pointed out here: http://www.calguns.net/calgunforum/s...7&postcount=77

The Brady request has zero chance.

Basically, the core holding of Peruta is going to be subject to an en banc vote sooner or later, and it is better to have the people that argued Peruta oppose it. Relying on "luck of the draw" might not get such good results.
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