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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 11-12-2013, 10:38 AM
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Default Drake v. Jerejian (NJ CCW) [cert denied 5/5]

Drake v. Jerejian [New Jersey]

FKA: Drake v. Filko, Muller v. Maenza, Piszczatoski (WTF?!) v. Cook, or any combination thereof.

Issue: 2A Right to Bear Arms outside the home.

Question Presented: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

Status (as of 5/5/2014): Cert Denied.

5/5/2014 - Conference orders released: Cert Denied.
4/28/2014 - Distributed for 5/2/2014 Conference.
4/21/2014 - Distributed for 4/25/2014 Conference.
4/2/2014 - Distributed for 4/18/2014 Conference.
4/1/2014 - Reply Brief filed by Petitioners.
3/14/2014 - BIO filed by Respondents.
2/25/2014 - Supp. Brief filed by Petitioners.
2/13/2014 - Side Note: Peruta published by 9CA.
2/12/2014 - Various Amici Briefs filed: GOF, NRA, Members of Congress, Center for Constitutional Jurisprudence, Wyoming, Judicial Education Project, and Cato.
1/9/2014 - Petition for Writ of Certiorari filed.
11/5/2013 - Justice Alito grants application to extend time (thru 1/9/2014).
11/1/2013 - Application to extend time to file cert. petition.
9/4/2013 - Mandate issued.
8/27/2013 - Petition for rehearing en banc denied.
8/14/2013 - Petition for rehearing filed.
7/31/2013 - Judgment entered.
7/31/2013 - 3CA Panel Opinion.
1/24/2012 - Appeal docketed.
1/16/2012 - Notice of Appeal.
1/12/2012 - Trial Court Opinion and Order granting Defendants' MTD & denying Plaintiffs' MSJ.
10/27/2011 - MSJ/MTD hx.
1/26/2011 - Defendants' MTD filed (P&A).
12/20/2010 - Plaintiffs' MSJ filed (P&A).
11/22/2010 - Complaint filed.

Trial Court - Dist. NJ
Case No.: 2-10-cv-06110.
Docket: http://ia600301.us.archive.org/16/it...20.docket.html

Appellate Court - 3CA
Case No.: 12-1150.
Docket: http://ia601703.us.archive.org/3/ite...50.docket.html

SCOTUS
Case No.: 13-827
Docket: http://www.supremecourt.gov/Search.a...les/13-827.htm

Links:
SCOTUSblog case file: http://www.scotusblog.com/case-files...ke-v-jerejian/
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Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA).

Last edited by fizux; 05-05-2014 at 5:54 AM.. Reason: update
  #2  
Old 12-13-2013, 7:56 PM
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Originally Posted by fizux View Post
Drake v. Filko [New Jersey]
Issue: 2A Right to Bear Arms outside the home.

Status: Loss at 3CA, en banc denied; Cert. Petition due 1/9/2014.
Gura has less than 1 month to file (or not)....
  #3  
Old 12-13-2013, 8:29 PM
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Gura has less than 1 month to file (or not)....
He will file. Peña oral arguments are Monday which gives some insight into the timing here.

-Gene
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Old 12-13-2013, 8:50 PM
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Welcome back, Gene.
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Old 12-13-2013, 9:27 PM
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It's good to see you back Gene!
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  #6  
Old 12-13-2013, 9:44 PM
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It's good to see you back Gene!
agree
  #7  
Old 12-15-2013, 10:02 PM
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Just been a bit busy. I think things will get to explain themselves shortly in a fun way.

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Old 12-16-2013, 8:06 AM
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Just been a bit busy. I think things will get to explain themselves shortly in a fun way.

-Gene
Did you have an exciting several month vacation in southeastern Cuba hosting several members of our state senate and assembly, each of which came back pro-2A ... ?
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Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA).
  #9  
Old 12-16-2013, 8:13 AM
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Did you have an exciting several month vacation in southeastern Cuba hosting several members of our state senate and assembly, each of which came back pro-2A ... ?
I guess we can all have our dreams.
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Old 01-02-2014, 11:18 PM
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Gura has less than 1 month to file (or not)....
Gura now has less than 1 week to file (or not)....

(Why do lawyers always procrastinate? )
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Old 01-03-2014, 2:42 AM
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Originally Posted by Paladin View Post
Gura now has less than 1 week to file (or not)....

(Why do lawyers always procrastinate? )
He'll file, only question is whether he'll possibly ask for another extension. In this case it's clear he's hoping some other cases get decided(in our favor) to increase chances of a cert grant.
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Old 01-03-2014, 4:06 AM
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Originally Posted by Paladin View Post
Gura now has less than 1 week to file (or not)....
Quote:
Originally Posted by press1280 View Post
He'll file, only question is whether he'll possibly ask for another extension. In this case it's clear he's hoping some other cases get decided(in our favor) to increase chances of a cert grant.
On the few occasions it has actually happened to me, it is rather embarrassing to have a case come down that eviscerates major portions of one's argument between briefing and oral argument.

In this case, I think many of us are hoping that the 9CA Richards/Peruta/Baker panel renders an opinion soon ... during our lifetimes ... before Palmer.

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(Why do lawyers always procrastinate? )
For a $5,000.00 retainer, I'd be happy to provide a detailed explanation.
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  #13  
Old 01-03-2014, 4:58 AM
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Originally Posted by fizux View Post
.
.
.
For a $5,000.00 retainer, I'd be happy to provide a detailed explanation.
Just another delaying tactic. . .

OK, OK, just kidding.
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Old 01-03-2014, 6:28 PM
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For a $5,000.00 retainer, I'd be happy to provide a detailed explanation.
Sorry, because of lawyers' habit of procrastinating, I only enter into unilateral contracts with them.
  #15  
Old 01-09-2014, 12:18 PM
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Originally Posted by fizux View Post
Drake v. Filko [New Jersey]
Issue: 2A Right to Bear Arms outside the home.

Status: Loss at 3CA, en banc denied; Cert. Petition due 1/9/2014.

11/5/2013 - Justice Alito grants application to extend time (thru 1/9/2014).
Well, it's not like he waited until the last minute or anything....

U.S. SUPREME COURT ASKED TO CONSIDER SAF, ANJRPC RIGHT TO CARRY CASE

For Immediate Release: 1/9/2014

BELLEVUE, WA – The Second Amendment Foundation and Association of New Jersey Rifle & Pistol Clubs today asked the U.S. Supreme Court to hear the appeal in the challenge to New Jersey’s unconstitutional carry laws. The case is Drake v. Jerejian.

Prepared by attorneys Alan Gura (who won Second Amendment victories in the groundbreaking Heller and McDonald cases) and David Jensen, today’s petition is the latest effort to bring a right-to-carry case before the high court and is the next step in the process of resolving the differing opinions of lower courts on the right to bear arms for personal protection outside the home.

More at: http://www.saf.org/viewpr-new.asp?id=471
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Old 01-09-2014, 2:52 PM
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In the press release, the ANJRPC Executive Director said:

Quote:
...this case may be different due to the extreme nature of New Jersey’s law...
How is New Jersey's law any more or less extreme than California's or New York's laws regarding the issuance of CCWs?
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  #17  
Old 01-09-2014, 3:10 PM
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I'll be waiting.
  #18  
Old 01-09-2014, 3:33 PM
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The differences are interesting, but I’m beyond getting my hopes up at this point. Nevertheless …

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Old 01-09-2014, 4:01 PM
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Anybody have a link to the cert?
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Old 01-09-2014, 4:13 PM
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http://saf.org/legal.action/drake_ce...tion_filed.pdf

I don't know the normal tone of these but its as if they are challenging the court to take it.
  #21  
Old 01-09-2014, 4:20 PM
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And how long does the court have to grant or deny cert?
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Old 01-09-2014, 4:27 PM
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And how long does the court have to grant or deny cert?
The odds are we'll hear before this April.

fwiw I started a thread mainly to help myself to keep track of the Concealed Carry fight at:
http://www.calguns.net/calgunforum/s...d.php?t=812950

I update the OP as things happen. Feel free to bookmark it.
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Old 01-10-2014, 5:08 PM
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Seems to me that if SCOTUS denies cert on this case after all the previous denials, that it really would say they absolutely don't want to answer the question of whether the 2nd Ammendment right exists in any meaningful way outside the home. This argument for cert is pretty plainly stated for the Supreme Court to address a very basic question about how to interpret the scope of a fundamental right, and set clear boundaries of government's intrusion, in a clear yes/no fashion. If they deny it, it says they really are much more afraid of all the downstream consequences of affirming a right and the potential unwinding of regulations at both the federal and state level, than they are of fundamentally failing to uphold their ethical duty to protect the relevance of the Constitution in our form of government.

Last edited by dawgcasa; 01-10-2014 at 5:11 PM..
  #24  
Old 01-10-2014, 9:51 PM
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If SCOTUS doesn't take this one, there are still Richards et al and Palmer in DC.

-Gene
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Old 01-10-2014, 9:53 PM
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Don't forget Peruta.
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Old 01-10-2014, 10:27 PM
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If SCOTUS doesn't take this one, there are still Richards et al and Palmer in DC.
The problem is, we only have five votes. Every year they delay dealing with this, one of those five votes could go away. At this point I believe that, due to demographic trends in Florida, we are very close to not being able to elect another Republican president for decades.
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Old 01-12-2014, 9:55 AM
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If SCOTUS doesn’t take this one, there are still Richards et al and Palmer in DC.
At least Gene still has a sense of humor.

In all seriousness, though, now that I’m actively fleeing California, we should start to see some progress in our favor.
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Old 01-12-2014, 5:27 PM
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I'm hoping the jab at Palmer catches the CJ's notice and another phone call is made to a certain judge's chambers in New York...
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Old 01-12-2014, 7:12 PM
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You guys and your jokes!

Palmer won’t be decided until President Obama or President Rodham Clinton has appointed a successor to the late Justice Scalia or the late Justice Kennedy.

On the other hand, if I take a job in Washington, you guys will probably have your virtual shall-issue LTCs before I can get my new driver license. I’ll pay that price, though, if it means averting civil war.
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Old 01-13-2014, 1:42 PM
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If SCOTUS doesn't take this one, there are still Richards et al and Palmer in DC.

-Gene
The judge in Palmer has dragged his feet so much his shoes have all but worn through. I keep checking for CA9 to finally post their results for Richards though. Still wondering what kind of legal hoops CA9 will pull to get out of the lower court saying UOC satisfies the right to arms, then the state prompting banning UOC.... Going to be hilarious what they say.... unless of course they follow logic and decide in our favor for once.
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Old 01-13-2014, 11:54 PM
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The judge in Palmer has dragged his feet so much his shoes have all but worn through. I keep checking for CA9 to finally post their results for Richards though. Still wondering what kind of legal hoops CA9 will pull to get out of the lower court saying UOC satisfies the right to arms, then the state prompting banning UOC.... Going to be hilarious what they say.... unless of course they follow logic and decide in our favor for once.
AFAIK they can probably just ignore that part of the lower court's ruling and cut/paste Kachalsky just to go along with the other courts. From the oral arguments I feel pretty good about our odds, I think it'll come down to how O'Scannilion votes. En banc I'd be worried more about.
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Old 01-14-2014, 5:29 AM
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The judge in Palmer has dragged his feet so much his shoes have all but worn through. I keep checking for CA9 to finally post their results for Richards though. Still wondering what kind of legal hoops CA9 will pull to get out of the lower court saying UOC satisfies the right to arms, then the state prompting banning UOC.... Going to be hilarious what they say.... unless of course they follow logic and decide in our favor for once.

Now who's joking?


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Old 01-14-2014, 11:33 AM
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AFAIK they can probably just ignore that part of the lower court's ruling and cut/paste Kachalsky just to go along with the other courts. From the oral arguments I feel pretty good about our odds, I think it'll come down to how O'Scannilion votes. En banc I'd be worried more about.
Yeah I'm more curious how they will justify screwing us, rather than if.

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Now who's joking?


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There's still a slim chance they take the 7th circuit seriously though.... slim
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Old 01-15-2014, 7:05 AM
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Yeah I'm more curious how they will justify screwing us, rather than if.



There's still a slim chance they take the 7th circuit seriously though.... slim

"Slim" being the operative word. Still, it can't be ruled out entirely yet, I suppose.


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Old 01-17-2014, 2:51 PM
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Originally Posted by dawgcasa View Post
Seems to me that if SCOTUS denies cert on this case after all the previous denials, that it really would say they absolutely don't want to answer the question of whether the 2nd Ammendment right exists in any meaningful way outside the home. This argument for cert is pretty plainly stated for the Supreme Court to address a very basic question about how to interpret the scope of a fundamental right, and set clear boundaries of government's intrusion, in a clear yes/no fashion. If they deny it, it says they really are much more afraid of all the downstream consequences of affirming a right and the potential unwinding of regulations at both the federal and state level, than they are of fundamentally failing to uphold their ethical duty to protect the relevance of the Constitution in our form of government.
Perfect.
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Old 01-31-2014, 8:08 PM
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How do you (everyone) feel about this statement? Do we have any cases that are challenging the permit requirement?

Quote:
"The SAF did not challenge the permit requirement, which was also likely a fatal flaw in its case," writes Charles Nichols, president of the California Right To Carry. "The SAF explicitly disavowed a challenge to the permit requirement and argued that states can ban Open Carry if they want to. Needless to say, the SAF did not seek to openly carry a handgun and this wasn't the first time the Supreme Court turned down a concealed carry appeal. The Supreme Court has turned down every concealed carry appeal."

Nichols said the SAF is making a similar mistake in Drake v. Filko. "The SAF does not challenge the permit requirement nor do they seek to carry a handgun openly," Nichols writes. "It, too, will be denied."
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Old 01-31-2014, 8:40 PM
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Originally Posted by wireless View Post
How do you (everyone) feel about this statement? Do we have any cases that are challenging the permit requirement?
One word is all that is needed: Nichols.

Nichols keeps missing the point. At the beginning, it was sort of funny; now I think he just needs a brain transplant.
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Old 01-31-2014, 8:53 PM
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Ya, see I have no idea what that means. I've just been reading about the drake case and came across this. An explanation for the less informed would be much appreciated.
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Old 01-31-2014, 10:07 PM
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Originally Posted by fizux View Post
One word is all that is needed: Nichols.

Nichols keeps missing the point. At the beginning, it was sort of funny; now I think he just needs a brain transplant.
You may not like Nichols but his point is an excellent one. How many challenges to having to obtain a license to exercise an enumerated right does SAF have going right now? How many challenges does SAF have going against open carry bans? How many serious challenges to open carry bans and licensing of an enumerated right do they intend to file this year? The "Right People" throw the same spaghetti at the wall time and again in the hope that someday something will stick and then act shocked when it doesn't.

I want SAF to continue to challenge may-issue, but I also want them to get off their butts and lead a massive challenge to licensing constitutional rights, and several real challenges to open carry bans. Until they do then Nichols' point remains valid. Lead, follow, or get the #@!! out of the way!
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Last edited by sholling; 01-31-2014 at 10:14 PM..
  #40  
Old 01-31-2014, 11:12 PM
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Quote:
Originally Posted by sholling View Post
You may not like Nichols but his point is an excellent one. How many challenges to having to obtain a license to exercise an enumerated right does SAF have going right now? How many challenges does SAF have going against open carry bans? How many serious challenges to open carry bans and licensing of an enumerated right do they intend to file this year? The "Right People" throw the same spaghetti at the wall time and again in the hope that someday something will stick and then act shocked when it doesn't.

I want SAF to continue to challenge may-issue, but I also want them to get off their butts and lead a massive challenge to licensing constitutional rights, and several real challenges to open carry bans. Until they do then Nichols' point remains valid. Lead, follow, or get the #@!! out of the way!
There are a couple of Embody threads out there too, where I set forth a brief explanation of why I think (IMHO) it is a mistake to ignore the groundwork of solidifying "bear" as a right, and instead demand multiple controversial things at once.

To answer the question posed before, it is easier to lay a strong foundation. Nichols is demanding Permitless Loaded Open Carry be recognized as the one and only right, **to the exclusion** of any other form of carry as being constitutional. Basically, if Nichols and Embody don't get their way, then noone should be allowed to carry. Its like having the 9mm vs .45 debate -- people get irrational.

Permitless Loaded Open Carry is a subset of Carry. Let's work on Carry first, then screw around with open/concealed, licensed/permitless, paper/plastic. I'd love to see PLOC, but I don't want to flush everything else down the drain in the process.
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Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA).
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