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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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  #201  
Old 06-11-2014, 10:42 AM
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Originally Posted by IVC View Post
There are three tightly related cases: Peruta, Richards and Baker. The last two simply said "see Peruta."

The tricky part is that in Peruta there was a problem with notification of AG, while AG actively argued *against* being on the case in Richards. Being two different cases (albeit with the identical outcome,) what AG did in one is not directly applicable to the other. At least not completely.

Somewhat of a mess, so we have to wait and see...
Yes - but - listening to the oral arguments the panel specifically asked the defendant's attorney whether the proceedings should be suspended to allow for AG notification. I recollect the collective discussion supported by the defendant was no because the law was not questions, only the Sheriff's implementing policy.

It does raise an interesting question though.

Up through the panel oral arguments and written opinion the Sheriff's implementing policy of the underlying statutory scheme was the issue. The AG is alleging that Peruta destroys the underlying statutory scheme - which is the only means by which she can lawfully be granted intervener status.

So, although the plaintiff's district court filing did not attack the statute, only the Sheriff's implementing policy, could the panel grant the AG's intervener status and then rule upon the constitutionality of the statutory scheme based upon the AG's subsequent brief articulating why/how the Peruta decision destroys underlying statutory scheme?

I don't believe they can reach the level of determining the constitutionality of the states statutory scheme. I wonder though whether they could/would send a "warning shot" to the Sheriffs to not adopt a similar prohibitive standard for other discretionary policy CCW qualifying areas such as GMC now that GC is settled?
  #202  
Old 06-12-2014, 7:19 AM
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Just read the latest in the Birdt case...
http://www.scribd.com/doc/229317260/osc-v-jwb

In so doing, I was struck by what appears to me to be a theme running through that document, namely that the S.O. is acting as an agent of the State when dealing with CCW.

Now, as we try to second guess what the court will do in Peruta, I wonder if some of the principles outlined in the above document might bode well for Harris re: intervention. It would seem so based on my understanding of what I have read above.

If so why is it taking so LONG for the court to send down a ruling.. *mumble*.

Side note: I was fascinated that the above court did not just dismiss the case out of hand... instead they seem to be intent on hearing the case - even to the point of telling one of the parties how to save their own case... is this common?
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  #203  
Old 06-12-2014, 8:05 AM
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Its common when the other side has thoroughly ticked off the judge by lying to her. Typically it is unheard of.
  #204  
Old 06-12-2014, 10:56 AM
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Correct.. but if Gore bailed then Harris could walk in because Gore """shouldnt"" be able to speak for the entirety of the state ... right?
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  #205  
Old 06-12-2014, 11:19 AM
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Originally Posted by CG of MP View Post
Correct.. but if Gore bailed then Harris could walk in because Gore """shouldnt"" be able to speak for the entirety of the state ... right?
He didn't "bail" - he just accepted a court ruling.

AG did the same when "defending" Prop 8...
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Old 06-12-2014, 11:37 AM
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This is what he did:

Gore: "OK fine. I'm not challenging the ruling. When the ruling is final I'll issue permits. But no permits before then unless you have good cause."
Court: "Should Kamala Harris intervene?"
Gore: silence
Court: "Sheriff Gore, I'll ask one more time. Should Kamala Harris intervene?"
Gore: "She's an appropriate intervenor. Do what you want."

So by doing that he didn't bail and just accepted the ruling? To me, if he accepted the ruling, he'd be issuing permits by now.
  #207  
Old 06-12-2014, 11:41 AM
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Originally Posted by taperxz View Post
He would if the district court instructs him to. I believe thats his obvious position and what he is waiting for.
The word here isn't "instruct." He's already been instructed. The word is force. The mandate is force. He has to be forced to issue permits before he issues permits.
  #208  
Old 06-12-2014, 11:43 AM
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Quote:
Originally Posted by IVC View Post
He didn't "bail" - he just accepted a court ruling.

AG did the same when "defending" Prop 8...
and Gray Davis diid the same with Prop 187
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  #209  
Old 06-12-2014, 2:05 PM
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Originally Posted by IVC View Post
He didn't "bail" - he just accepted a court ruling.

AG did the same when "defending" Prop 8...
And much like prop8, SCOTUS may avoid the constitutional question by relying on questions of standing. That would play directly in to Harris's hands too. She can say she did everything she could but the supreme court denied her the right to defend the law.
  #210  
Old 06-12-2014, 2:10 PM
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And much like prop8, SCOTUS may avoid the constitutional question by relying on questions of standing. That would play directly in to Harris's hands too. She can say she did everything she could but the supreme court denied her the right to defend the law.
Not sure I'd call it "playing in her hands" - she is genuinely upset that a gun control law is being stricken down.
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  #211  
Old 06-12-2014, 2:13 PM
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Originally Posted by ke6guj View Post
and Gray Davis diid the same with Prop 187
We have plenty of examples, including the current federal administration. Selective defense of laws in courts, combined with selective enforcement of existing laws makes for a powerful tool if the party in power lets it happen.

However, much like the "nuclear option" in the Senate, it's a double edged sword when the tides turn.
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  #212  
Old 06-12-2014, 3:41 PM
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Anyone have a word on this? From another thread...


Quote:
Originally Posted by Gray Peterson View Post

Nichols v. Harris ruling

A panel decision of the Ninth Circuit
is binding on lower courts as soon as it is published, even
before the mandate issues, and remains binding authority until
the decision is withdrawn or reversed by the Supreme Court or an
en banc court.

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Old 06-12-2014, 4:11 PM
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"Plaintiff further appears to misinterpret the import of the
Peruta court’s clarification in footnote 19 that it was not
“ruling on the constitutionality of California statutes.” (Obj.
at 2) (quoting Peruta, 742 F.3d at 1173 n.19). This footnote is
part of the discussion in which the Ninth Circuit explained that
because the Second Amendment does not protect any particular mode
of carry, a claim that a state must permit a specific form of
carry, such as open carry, fails as a matter of law
. "
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  #214  
Old 06-12-2014, 8:09 PM
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Quote:
Originally Posted by IVC View Post
We have plenty of examples, including the current federal administration. Selective defense of laws in courts, combined with selective enforcement of existing laws makes for a powerful tool if the party in power lets it happen.

However, much like the "nuclear option" in the Senate, it's a double edged sword when the tides turn.
Very true, but for it to be a double edged sword requires the 'new party in power' to have the intestinal fortitude to do the same.
  #215  
Old 06-12-2014, 8:50 PM
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Originally Posted by pastureofmuppets View Post
Anyone have a word on this? From another thread...
You know, it's extremely rare when nitwits like Charles Nichols actually accomplish something for the right to self-defense, but yet still personally shooting himself in the foot...
  #216  
Old 06-13-2014, 12:41 AM
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Originally Posted by Gray Peterson View Post
You know, it's extremely rare when nitwits like Charles Nichols actually accomplish something for the right to self-defense, but yet still personally shooting himself in the foot...
Sounds like the judge cut him a lot of slack or gave him enough rope to hang himself.
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Old 06-13-2014, 5:28 AM
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Quote:
Originally Posted by CG of MP View Post
Correct.. but if Gore bailed then Harris could walk in because Gore """shouldnt"" be able to speak for the entirety of the state ... right?
Defendants speak for "the entirety of" much larger groups all the time. Even if Harris intervenes should she be able to speak for the entirety of the ninth circuit? If the case goes to SCOTUS should she be able to speak for the entirety of the nation?

Constitutional case law always has consequences that exceed the initial parties.
  #218  
Old 06-13-2014, 5:35 AM
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Originally Posted by pastureofmuppets View Post
Anyone have a word on this? From another thread...
Not sure what word there is on it. Yes, Peruta is the law of the land. The trick is to get district courts and CA9 panels to actually rule on it rather than draw out cases pending the end of the appeals process.
  #219  
Old 06-13-2014, 8:19 AM
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Originally Posted by dantodd View Post
Defendants speak for "the entirety of" much larger groups all the time. Even if Harris intervenes should she be able to speak for the entirety of the ninth circuit? If the case goes to SCOTUS should she be able to speak for the entirety of the nation?

Constitutional case law always has consequences that exceed the initial parties.
The last time the 2A was reviewed by SCOTUS (before the Heller round) was the Miller case, 1939 (which gets very little discussion here for some reason).

In that case, the 2A rights of the entire nation were represented by someone who:
  • Was a small-time criminal
  • Possessed a sawed-off shotgun
  • Was represented by a public defender iirc
  • His attorney didn't show up to the hearing before SCOTUS
  • Was dead

Quote:
Originally Posted by wiki
Neither the defendants nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling.[3] Miller was found shot to death in April, before the decision was rendered
If that guy, who was dead and his attorney couldn't afford to show up in SCOTUS, was able to carry the burden of defending the 2A for the entire nation, then I'm ok with a sheriff with millions of dollars in legal budget carrying the burden of trying to deny all of us our rights.
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  #220  
Old 06-13-2014, 12:48 PM
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Not on point to Peruta directly, but an article in the WSJ of today indicates the 9th Circuit got its clock cleaned again, and again wins "the most reversed" CA prize.

In this session, of the 11 cases that got cert, the 9th lost 10 times. 8 of the 10 reversals were unanimous. Kagan and Ginsburg agreed with the majority 10 out 10 times.

Details omitted, a couple of the comments about the reasoning of the 9th were "scalding" (my word) for the intensity of dislike at SCOTUS for the lack of supporting logic mustered by the 9th to justify itself.

I dunno, but this may have some impact on the disposition of Peruta.

The majority opinion will require a great deal of invention to overcome, and SCOTUS, across the board, has little respect for such out of the 9th.

While the court generally has a reputation for buffoonery to uphold, Peruta may be a bridge too far. Allowing Harris to intervene has some real problems in fact, and I would be surprised if the panel allows it. Reversal on en banc would substantially risk reversal at SCOTUS, and while the libs would have the satisfaction of delaying the ruling and further hassling the bitter clingers, the rebuke from SCOTUS could be a deterrent.

Hope springs eternal.
  #221  
Old 06-13-2014, 2:58 PM
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Originally Posted by HarryS View Post
Not on point to Peruta directly, but an article in the WSJ of today indicates the 9th Circuit got its clock cleaned again, and again wins "the most reversed" CA prize.

In this session, of the 11 cases that got cert, the 9th lost 10 times. 8 of the 10 reversals were unanimous. Kagan and Ginsburg agreed with the majority 10 out 10 times.

Details omitted, a couple of the comments about the reasoning of the 9th were "scalding" (my word) for the intensity of dislike at SCOTUS for the lack of supporting logic mustered by the 9th to justify itself.

I dunno, but this may have some impact on the disposition of Peruta.

The majority opinion will require a great deal of invention to overcome, and SCOTUS, across the board, has little respect for such out of the 9th.

While the court generally has a reputation for buffoonery to uphold, Peruta may be a bridge too far. Allowing Harris to intervene has some real problems in fact, and I would be surprised if the panel allows it. Reversal on en banc would substantially risk reversal at SCOTUS, and while the libs would have the satisfaction of delaying the ruling and further hassling the bitter clingers, the rebuke from SCOTUS could be a deterrent.

Hope springs eternal.
I think if Peruta gets to SCOTUS in its current form, they'll look at the judge who authored the opinion more than which circuit produced it. Sure, the 9th can have some pretty loopy opinions depending on the panel. O'Scannlain correctly called incorporation of the 2A in Nordyke and set up the split that allowed McDonald cert.
There's no way this opinion gets the "scalding" that the others got.
  #222  
Old 06-13-2014, 3:16 PM
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Press,
I meant to say that if the 9th reverses O'Scannlian's work via en banc, THAT opinion would be scalded.

The reversal would have to very loopy, and perhaps recent experience would inform the loopy justices that they can't just make stuff up because they know the conclusion they want. They have to start with the facts and work from there, not start with a conclusion and make up a story to justify it.

On the other hand, they may reckon on losing if Peruta gets cert and be satisfied to take one more dump onto the heads of the gunnies by delaying matters a couple of years more.

Sorry if I wasn't clear.
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Old 06-13-2014, 3:19 PM
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Originally Posted by HarryS View Post
Not on point to Peruta directly, but an article in the WSJ of today indicates the 9th Circuit got its clock cleaned again, and again wins "the most reversed" CA prize.

In this session, of the 11 cases that got cert, the 9th lost 10 times. 8 of the 10 reversals were unanimous. Kagan and Ginsburg agreed with the majority 10 out 10 times.

Details omitted, a couple of the comments about the reasoning of the 9th were "scalding" (my word) for the intensity of dislike at SCOTUS for the lack of supporting logic mustered by the 9th to justify itself.
And the consequences to those on the 9th Circuit that penned these opinions is ...

NOTHING!

Frankly, the 9th Circuit can essentially rely on the fact that SCOTUS has far more demand for its services than it can supply (by orders of magnitude) to issue whatever decisions it wants and, despite the fact that it is the most overturned circuit, have the vast majority of those decisions stand.

The 9th Circuit can inundate SCOTUS with as much buffoonery as it wants. I know of nothing that SCOTUS can actually do about it.
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  #224  
Old 06-20-2014, 12:13 PM
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Originally Posted by CCWFacts View Post
The last time the 2A was reviewed by SCOTUS (before the Heller round) was the Miller case, 1939 (which gets very little discussion here for some reason).

In that case, the 2A rights of the entire nation were represented by someone who:
  • Was a small-time criminal
  • Possessed a sawed-off shotgun
  • Was represented by a public defender iirc
  • His attorney didn't show up to the hearing before SCOTUS
  • Was dead



If that guy, who was dead and his attorney couldn't afford to show up in SCOTUS, was able to carry the burden of defending the 2A for the entire nation, then I'm ok with a sheriff with millions of dollars in legal budget carrying the burden of trying to deny all of us our rights.
Miller was not represented by a public defender. Had he been, I expect the case would have been defended at the Supreme Court.

Miller was represented by Paul E. Gutensohn, private counsel of the Fort Smith, Arkansas law firm, Warner & Warner. He was appointed by the district court. He initially won the case on a demurrer, but when the government appealed, Gutensohn apparently abandoned his client (likely as part of a government conspiracy).

Gratuitous snipes at the public defender are misplaced. They usually have more resources and commitment than private counsel who are often just chasing a buck.

In most instances, the public defender is committed to ensuring that justice is provided to a disenfranchised and underserved population.

They possess a breadth of experience and knowledge and a dedication to their cause that many private lawyers lack.

These links illustrate how Miller was a political, gun-grabbing orchestration from its inception.

http://gunwatch.blogspot.com/2013/12...-states-v.html

http://www.scribd.com/doc/122415466/us-v-miller

Last edited by Shotgun Man; 06-20-2014 at 12:47 PM..
  #225  
Old 06-23-2014, 1:26 PM
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ZZZZZZzzzzzzzzzzzZZZZZZZZZZZ
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  #226  
Old 06-23-2014, 4:18 PM
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Published on Jun 23, 2014
Sean Brady of the Michel & Associates Peruta legal team discusses potential outcomes if Attorney General Kamala Harris' request to intervene in Peruta case is granted.


http://www.youtube.com/watch?v=QmnvJ...ature=youtu.be
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  #227  
Old 06-23-2014, 4:22 PM
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Is this delay typical of this sort of request? If not, is the delay an indicator of anything one way or another?
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Old 06-23-2014, 4:32 PM
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Is this delay typical of this sort of request? If not, is the delay an indicator of anything one way or another?
Things move at a glacial pace when it comes to firearms litigation. Just sit back and relax, you'll waste your life away worrying about the next time something meaningful is going to get updated on the case.
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Old 06-23-2014, 4:40 PM
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Things move at a glacial pace when it comes to firearms litigation. Just sit back and relax, you'll waste your life away worrying about the next time something meaningful is going to get updated on the case.
Just askin
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Old 06-24-2014, 12:29 AM
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Is this delay typical of this sort of request? If not, is the delay an indicator of anything one way or another?
i hope it's an indicator of the court doing all it can in an attempt to determine whether or not KH has any legal standing at all in this case

while i understand exploring all the legal angles may take some time, im hoping that the outcome of their ruling has been researched to the point of being unchallengeable, and, hopefully in our favor, that she has no standing
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Old 06-24-2014, 11:14 AM
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Viewing the current trends in the California legal system, causes me to be a fatalist. This is going to be reversed.
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Old 06-24-2014, 11:37 AM
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Viewing the current trends in the California legal system, causes me to be a fatalist. This is going to be reversed.
If that line of reasoning worked, we wouldn't get this brilliantly written decision in the first place. What gives?
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Old 06-24-2014, 12:11 PM
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Please just someone tell me when it's over.
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Old 06-24-2014, 12:58 PM
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If it is granted en banc I believe it will be reversed. Unfortunately this is a matter of great importance in CA for the wrong reasons, and they will most likely Grant en banc review. This most likely will not be granted certiorari at the SCOTUS because they avoid gun cases like the plague. I think they lefted at "This was pushed down to the states via 14A and we ruled 2A is a n individual right....You guys figure out the rest"
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Old 06-24-2014, 1:32 PM
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But do we not stand a better chance than not of it NOT being granted en banc?

Is not the original pannel (the ones that sided with us and wrote that brilliant piece) the ones that will be allowed to tell K Harris to sit this one out?

If it is the original pannel why would they put their work up for en banc if they did not have to?


If I am wrong about that then yea all bets are off.
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Old 06-24-2014, 1:36 PM
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Originally Posted by Frisco3Gun View Post
Please just someone tell me when it's over.
It ain't over till it's over.
  #237  
Old 06-24-2014, 1:49 PM
HarryS HarryS is offline
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On the merits, Harris should be rebuffed and en banc denied. The panel can make those decisions and to do otherwise would be to reverse themselves. I don't see that.

Another judge on the 9th can call for en banc, and I guess that has a good chance of occurring.

The level of buffoonery in a reversing en banc opinion may prompt SCOTUS to take the case and whack the 9th again.

Then, again, we could lose the lot.
  #238  
Old 06-24-2014, 2:11 PM
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CZ man in LA CZ man in LA is offline
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Whatever happened to the right of a speedy trial? The justice system moves too slow compared to the fast paced society we live in today.
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  #239  
Old 06-24-2014, 2:26 PM
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Quote:
Originally Posted by CZ man in LA View Post
Whatever happened to the right of a speedy trial? The justice system moves too slow compared to the fast paced society we live in today.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
there is no criminal prosecution in this case, so no 6th amendment right.
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  #240  
Old 06-24-2014, 3:53 PM
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Quote:
Originally Posted by kcbrown View Post
And the consequences to those on the 9th Circuit that penned these opinions is ...

NOTHING!

Frankly, the 9th Circuit can essentially rely on the fact that SCOTUS has far more demand for its services than it can supply (by orders of magnitude) to issue whatever decisions it wants and, despite the fact that it is the most overturned circuit, have the vast majority of those decisions stand.

The 9th Circuit can inundate SCOTUS with as much buffoonery as it wants. I know of nothing that SCOTUS can actually do about it.
The 9th Circuit knows it's primary mission is to support the loons and care not if they are overturned as they are quite proud of their own despicable record. They are crusaders for progressive change and will continue to bash their collective heads into the SCOTUS wall until they breathe their last breath and hand over the torch to the next generation of activist judges.
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