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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 05-01-2014, 10:02 AM
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Default KC BROWN/IVC DEBATE (5/31)

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Filed order (DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS and CONSUELO M. CALLAHAN) Appellee William D. Gore is ordered to notify this Court in writing within fourteen days of the date of this order of his position on the pending motions to intervene or that he takes no position. Appellee William D. Gore is further ordered to respond within fourteen days of the date of this order to the suggestion that this case is moot. See Opp’n to Pet. for Reh’g En Banc 16, Richards v. Prieto, No. 11-16255 (“Even were Peruta vacated tomorrow, neither this Court nor the state could do anything to keep Gore from printing permits to all otherwise-qualified comers. The Peruta dispute is moot.”). He shall explain any change in his policy that could affect this Court’s jurisdiction over this case. [9078973] (WL)
I doubt the County will agree that the case is moot. It absolutely isn't, and Gura's attempt to derail Peruta so he can get another shot at glory with Richards is pretty despicable.

In any event:
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Old 05-01-2014, 10:12 AM
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I recapped the document. It's now showing in the Internet Archive.

Thanks for the heads up.
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Old 05-01-2014, 10:26 AM
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Meh. Another data point. Trying to handicap CA9 thinking is like trying to read tea leaves.
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Old 05-01-2014, 10:27 AM
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Quote:
Originally Posted by Tincon View Post
snip...

In any event:
Two weeks is the deadline for a response. Not a ruling.

Don't break out the champagne just yet.
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  #5  
Old 05-01-2014, 10:28 AM
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Basically two weeks just to ask for Sheriff Gore on his opinion again which he already replied back in early April that he had no interest on pursuing this matter any further.
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Old 05-01-2014, 10:30 AM
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Originally Posted by Tincon View Post
I doubt the County will agree that the case is moot. It absolutely isn't, and Gura's attempt to derail Peruta so he can get another shot at glory with Richards is pretty despicable.

In any event:
Do you really think it is about that?

Gura has a case before SCOTUS that could end all of this for crying out loud... I highly doubt he is trying to take away glory from Paul Clement. They all seem like they are working together.
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  #7  
Old 05-01-2014, 10:37 AM
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Do you really think it is about that?

Gura has a case before SCOTUS that could end all of this for crying out loud...
Yes I really do. There is no other reason for Gura to be trying to moot Peruta. If Peruta is mooted, Gura knows that the chances of either Richards or Drake being granted cert go up significantly. It's not rocket science. Gura is playing stupid games. And I expect he will win some stupid prizes when the County responds very much in opposition to his arguments that Peruta is moot.

Quote:
Two weeks is the deadline for a response. Not a ruling.
Yes, there will be a response within two weeks.

However, the Court will rule in "Two Weeks"™.
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Old 05-01-2014, 10:39 AM
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Originally Posted by Tincon View Post
snip...

Yes, there will be a response within two weeks.

However, the Court will rule in "Two Weeks"™.
Where was the statement that the court will rule in two weeks contained in the order from the court?
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Old 05-01-2014, 10:39 AM
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Appellee William D. Gore is further ordered to respond within fourteen days of the date of this order to the suggestion that this case is moot. See Opp’n to Pet. for Reh’g En Banc 16, Richards v. Prieto, No. 11-16255 (“Even were Peruta vacated tomorrow, neither this Court nor the state could do anything to keep Gore from printing permits to all otherwise-qualified comers. The Peruta dispute is moot.”). He shall explain any change in his policy that could affect this Court’s jurisdiction over this case. [9078973]
Just to clarify whether I am reading this right or not.

If Sheriff Gore responds with a statement that he is now accepting self defense as the only necessary level of 'good cause' as a matter of policy Peruta becomes moot, the 9th no longer has jurisdiction and the decision of the 3 judge panel is vacated.

Is this correct?
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Old 05-01-2014, 10:40 AM
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Quote:
Originally Posted by Tincon View Post
I doubt the County will agree that the case is moot. It absolutely isn't, and Gura's attempt to derail Peruta so he can get another shot at glory with Richards is pretty despicable.

In any event:
Anyone have a link to the Response to Petition for Hearing En Banc by Gura so I can see the quote from the response in context? I just requested a PACER account but I'm impatient and want to read it now.

Edit: Found it on the Richards thread. http://www.hoffmang.com/firearms/ric...2014-04-11.pdf

Here is the relevant section, emphasis mine:
Quote:

III. CALIFORNIA LACKS STANDING TO ENTER DISPUTES CONCERNING COUNTY SHERIFF POLICIES.
Plaintiffs are constrained to address California’s efforts to intervene here and in Peruta. California lacks standing, as a matter of both causation and redressability. And while the parties’ past litigation conduct cannot manufacture jurisdiction, Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 701-02 (1982), judicial estoppel can establish the predicate facts that determine jurisdiction, or the absence thereof. Having successfully argued that its officers play no role in establishing or administering concealed carry licensing policies, the state cannot now assert that decisions addressing those policies injure the state or control its conduct.

State law entrusts to sheriffs and police chiefs exclusive authority over concealed carry licensing policies. Cal. Penal Code §§ 26160, 26202. The panel’s decisions here and in Peruta both addressed only the licensing policies of county sheriffs. Some California sheriffs’ policies already consider the self-defense interest “good cause.” For example, this case was mooted as to former Sacramento County Sheriff McGinness, upon the reformation of that county’s policies and the granting of concealed carry permits to former plaintiffs Deanna Sykes and Andrew Witham, among many others. For his part, Sheriff Gore has decided to join his defense-friendly colleagues, or at least to acquiesce in this Court’s decision. Even were Peruta vacated tomorrow, neither this Court nor the state could do anything to keep Gore from printing permits to all otherwise-qualified comers. The Peruta dispute is moot.

Plaintiffs here challenged the “good cause” statute, and its application by Sheriff Prieto. And unlike in Peruta, 741 F.3d at 1196 (Thomas, J., dissenting), Plaintiffs here filed, served and even emailed to the state the required notice of claim of unconstitutionality, see Dkt. 57. Had the panel reached Plaintiffs’ facial challenge, the state’s decision to sleep on its rights would be consequential. See Fed. R. Civ. P. 5.1(c) (60 day waiting period). But the panel reached only Sheriff Prieto’s policies, leaving the state without an interest in the outcome.
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  #11  
Old 05-01-2014, 10:43 AM
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Oh f@&& me!
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Old 05-01-2014, 10:44 AM
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Originally Posted by Kestryll View Post
Just to clarify whether I am reading this right or not.

If Sheriff Gore responds with a statement that he is now accepting self defense as the only necessary level of 'good cause' as a matter of policy Peruta becomes moot, the 9th no longer has jurisdiction and the decision of the 3 judge panel is vacated.

Is this correct?
Awesomely, just the opposite. The ruling is written and published. It is the law of the land. If Gore begins issuing for self defense there is no longer any controversy and the opinion stands but the AG has nothing to appeal. Of course, Richards can continue his appeal in an effort to overturn Peruta but Gore cannot "unwind the clock."
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Old 05-01-2014, 10:45 AM
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This is stupid! Gore is waiting for the finalization of this decision to change his policy, and they're waiting to see if he changes his policy to finalize the decision. What a cluster!
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Old 05-01-2014, 10:46 AM
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Originally Posted by dantodd View Post
Awesomely, just the opposite. The ruling is written and published. It is the law of the land. If Gore begins issuing for self defense there is no longer any controversy and the opinion stands but the AG has nothing to appeal. Of course, Richards can continue his appeal in an effort to overturn Peruta but Gore cannot "unwind the clock."
**WHEW!!**

I had this horrible vision of all the gains from Peruta being wiped away with a simple 'I'm doing it now' letter!
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Old 05-01-2014, 10:48 AM
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Wait, dantodd, so I understand you correctly what they are asking is whether the request for intervention is moot and not the underlying decision???
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Old 05-01-2014, 10:50 AM
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So, can anyone answer the question in simple English, is Peruta dispute moot or not ?
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Old 05-01-2014, 10:52 AM
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Originally Posted by Kestryll View Post
If Sheriff Gore responds with a statement that he is now accepting self defense as the only necessary level of 'good cause' as a matter of policy Peruta becomes moot, the 9th no longer has jurisdiction and the decision of the 3 judge panel is vacated.
Partially correct. It's possible that Peruta could be mooted at this stage if Gore claimed he intended to grant all the relief Peruta is asking for. But Gore saying it doesn't make it so (such a finding would not be automatic). However Gore is not likely to say that, and I'm guessing the panel is aware. So more likely they are looking for ammo to slap Gura with.

In any event, the Peruta decision would not be vacated, but it would effectively be superseded by Richards en banc (or possibly Drake at SCOTUS). As a practical matter it would mean we stay in the limbo we are in now for much longer.

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Where was the statement that the court will rule in two weeks contained in the order from the court?
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Old 05-01-2014, 10:55 AM
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So, can anyone answer the question in simple English, is Peruta dispute moot or not ?
Not moot.
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Old 05-01-2014, 10:57 AM
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Originally Posted by dantodd View Post
Awesomely, just the opposite. The ruling is written and published. It is the law of the land. If Gore begins issuing for self defense there is no longer any controversy and the opinion stands but the AG has nothing to appeal. Of course, Richards can continue his appeal in an effort to overturn Peruta but Gore cannot "unwind the clock."
With Gore refusing to respond to the motion and now being ordered to do so, it's not clear what his office will do, but I would predict they'll respond that the case is not moot and they are merely acting in advance of an eventual order, but were the case vacated, they would again cease allowing self-defense as a cause.
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Old 05-01-2014, 10:59 AM
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Originally Posted by Kestryll View Post
Just to clarify whether I am reading this right or not.

If Sheriff Gore responds with a statement that he is now accepting self defense as the only necessary level of 'good cause' as a matter of policy Peruta becomes moot, the 9th no longer has jurisdiction and the decision of the 3 judge panel is vacated.

Is this correct?
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Originally Posted by dantodd View Post
Awesomely, just the opposite. The ruling is written and published. It is the law of the land. If Gore begins issuing for self defense there is no longer any controversy and the opinion stands but the AG has nothing to appeal. Of course, Richards can continue his appeal in an effort to overturn Peruta but Gore cannot "unwind the clock."
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**WHEW!!**



I had this horrible vision of all the gains from Peruta being wiped away with a simple 'I'm doing it now' letter!
Thanks for asking this question Kes. I was thinking the same thing. My stomach sank when I read the OP
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Old 05-01-2014, 11:04 AM
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I really think Gore will reply with a no response. I have it on good info that he is really just done with this whole thing
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Old 05-01-2014, 11:06 AM
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So could Gore come BACK on board and ask for En Bac as well - further muddying the waters? That is can he now back away from backing away from the case? Is the court also then opening the door for him to pettition for CERT to the SCOTUS as well?

Originally I could follow this case pretty well but with all of the machinations in this case and its ties to others it is becomming a Gordian Knot and is requiring a LOT of brain power just to understand... never mind sensibly predict outcomes or moves.... on either damned side!

Would sure appreciate the new developments being put into simple English in context and with possible outcomes.
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Old 05-01-2014, 11:07 AM
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Wait, dantodd, so I understand you correctly what they are asking is whether the request for intervention is moot and not the underlying decision???
The hypothetical was wrt the underlying facts, not just the intervention. I think everyone agrees that IF intervention is granted it is on the grounds of a law being struck down as unconstitutional and therefore Gore issuing licenses wouldn't remove that controversy.
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Old 05-01-2014, 11:07 AM
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I really think Gore will reply with a no response. I have it on good info that he is really just done with this whole thing
On the pending motions to intervene I think you are correct. On the mootness issue though, he must respond per the order. Keep in mind, he still does not issue for self defense.
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Old 05-01-2014, 11:08 AM
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So, is it safe to assume the court isn't using the term "moot" to mean debatable?

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So, can anyone answer the question in simple English, is Peruta dispute moot or not ?
Seriously; moot means different things in English, American and in our Courts of Law.
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Old 05-01-2014, 11:08 AM
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So could Gore come BACK on board and ask for En Bac as well - further muddying the waters?
No, his timeframe for such a Motion has expired.
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Old 05-01-2014, 11:09 AM
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It took them that long just to order Gore to respond after they had already requested a response. Un freakin' real!
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Old 05-01-2014, 11:10 AM
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So could Gore come BACK on board and ask for En Bac as well - further muddying the waters?
No, the deadline for any party (or potential party) to request rehearing has passed. They are asking his position on intervention by other parties. I doubt he will take one, and it hardly matters if he does. I think the main thrust of this order is the mootness question.
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Old 05-01-2014, 11:11 AM
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It took them that long just to order Gore to respond after they had already requested a response. Un freakin' real!
Check out the timeline in Nordyke. This is light speed in comparison.
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Old 05-01-2014, 11:12 AM
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So, can anyone answer the question in simple English, is Peruta dispute moot or not ?
Essentially yes. As far as Gore goes he has said to the court he has no interest in further pursuing the case. This, for all intents and purposes eliminating the controversy thereby mooting the case, once the district issues a mandate.This has no bearing in the decision published by the court. It would stand.

However, if the AG gets her way there would still be an open controversy wrt to constitutionality of the underlying statute, not just Gore's application of it.

Essentially Gore wants it over (mooted) and Harris wants it to stay open so she can try to reverse the court. Obviously, when were way ahead, like now, we would like it to be over.
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Old 05-01-2014, 11:13 AM
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"He shall explain any change in his policy that could affect this Court’s jurisdiction over this case."

This part bothers me.....
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Old 05-01-2014, 11:14 AM
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Filed order (DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS and CONSUELO M. CALLAHAN) Appellee William D. Gore is ordered to notify this Court in writing within fourteen days of the date of this order of his position on the pending motions to intervene or that he takes no position. Appellee William D. Gore is further ordered to respond within fourteen days of the date of this order to the suggestion that this case is moot. See Opp’n to Pet. for Reh’g En Banc 16, Richards v. Prieto, No. 11-16255 (“Even were Peruta vacated tomorrow, neither this Court nor the state could do anything to keep Gore from printing permits to all otherwise-qualified comers. The Peruta dispute is moot.”). He shall explain any change in his policy that could affect this Court’s jurisdiction over this case.

Okay I am not a lawyer, but the way I am reading this, particularly the last part, I see some abject danger for us all here. Right now Peruta is 'the law of the land' (pending poss en banc and SCOTUS decission of course).

Here is what I think I am understanding.. I hope I am wrong....

If Gore agrees this case is moot, then it moots it from SAN DIEGO ONLY correct? That is every other county that has started issuing on the basis of Peruta can easily reverse and go back to the bad old days AND those that we could sue under a Peruta theory are suddently NO LONGER at any risk at all.

Please tell me here how my thinking is fouled up...
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  #33  
Old 05-01-2014, 11:16 AM
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If Peruta becomes moot because Sheriff Gore (and several other Sheriffs) decided to begin issuing carry licenses based on good cause being defined as self-defense/protection, it would make no sense for the Court to grant a petition for rehearing, or rehearing en banc in Richards and/or Baker, especially because those cases are unpublished. Am I correct, or do I need another sandwich and a nap?

Erik.
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Old 05-01-2014, 11:18 AM
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Tincon Tincon is offline
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Originally Posted by dantodd View Post
Essentially yes. As far as Gore goes he has said to the court he has no interest in further pursuing the case. This, for all intents and purposes eliminating the controversy thereby mooting the case, once the district issues a mandate.
That's not how it works at all. A case is not mooted simply because one party is tired of litigating.

First, the Sheriff has not changed his policy and is not issuing for self defense. He just has not appealed the decision himself. There would have to be no relief which could be granted to Peruta for this to even be possible. That means issuing for self defense at a bare minimum, and Gore is not even doing that.

Second, if he suddenly flip flopped that would not necessarily mean the case was moot. The AG (if allowed in) could still argue against the policy being that the Sheriff has to accept good cause so that the next Sheriff (or this Sheriff in the future) could exercise discretion as to whether self defense = good cause.
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Old 05-01-2014, 11:18 AM
dantodd dantodd is offline
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Originally Posted by tonelar View Post
So, is it safe to assume the court isn't using the term "moot" to mean debatable?
It means that the question is of no consequence or value. In this case, "Gore starts issuing license for self-defense" would make the case of little or no consequence because the plaintiffs were asking the court to force Gore to start issuing licenses for self-defense.

This doesn't mean that the courts will continue to debate the issue. Only that the issue is valuable only in terms of debate and not of any consequence. For example "moot court" is a practice courts whose holdings have no legal authority.
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Old 05-01-2014, 11:21 AM
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Originally Posted by Window_Seat View Post
If Peruta becomes moot because Sheriff Gore (and several other Sheriffs) decided to begin issuing carry licenses based on good cause being defined as self-defense/protection, it would make no sense for the Court to grant a petition for rehearing, or rehearing en banc in Richards and/or Baker, especially because those cases are unpublished. Am I correct, or do I need another sandwich and a nap?
No. Richards and/or Baker could still get a rehearing, published or not. Essentially this would function as a rehearing of Peruta. Anyway, it won't happen because Peruta isn't moot.
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Old 05-01-2014, 11:22 AM
dantodd dantodd is offline
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Originally Posted by CG of MP View Post
If Gore agrees this case is moot, then it moots it from SAN DIEGO ONLY correct? That is every other county that has started issuing on the basis of Peruta can easily reverse and go back to the bad old days AND those that we could sue under a Peruta theory are suddently NO LONGER at any risk at all.
You are wrong. Imagine the consequences of such a thing.

Any time one side loses a case they could comply with the ruling (as would be the case if Gore started issuing) before the District court, to whom the case is remanded, issued their mandate.

Obviously this is nonsensical. Could Chicago have changed their law after SCOTUS ruled against them and then avoided McDonald becoming the law of the land? Of course not, that is ridiculous. So too, here. The Ruling by the 3 judge panel stands until it is overturned. If the case dissipates before the district issues the mandate the ruling is still there.
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Old 05-01-2014, 11:23 AM
dantodd dantodd is offline
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Originally Posted by Window_Seat View Post
If Peruta becomes moot because Sheriff Gore (and several other Sheriffs) decided to begin issuing carry licenses based on good cause being defined as self-defense/protection, it would make no sense for the Court to grant a petition for rehearing, or rehearing en banc in Richards and/or Baker, especially because those cases are unpublished. Am I correct, or do I need another sandwich and a nap?

Erik.
Exactly, it has no bearing on previous proceedings but it makes any further hearings unnecessary.
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Old 05-01-2014, 11:26 AM
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Well a key point is that Gore is NOT issuing CCW based on good cause. Many of us have official letters saying we do not meet "state law" requirements for CCW with just self defense as the reason. So this case is not moot. Without it, Gore or any sheriff can arbitrarily pick when and if they allow self defense as the reason, and change their decision at any time. Peruta is critical to allow some certainty towards the ability to bear for self defense.
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Old 05-01-2014, 11:30 AM
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Originally Posted by Tincon View Post
Yes I really do. There is no other reason for Gura to be trying to moot Peruta. If Peruta is mooted, Gura knows that the chances of either Richards or Drake being granted cert go up significantly. It's not rocket science. Gura is playing stupid games. And I expect he will win some stupid prizes when the County responds very much in opposition to his arguments that Peruta is moot.
Richards being petitioned for cert is a long way off, not with en banc hanging over it.

Drake, on the other hand, could be granted as early as this Friday. And once it's granted, we could get a decision early next year. The whole country including California will be shall-issue. It's a win for everybody.

But if Peruta goes en banc, we will all lose.

Keep your eyes on the prize and off the personalities.

And for pete's sake, be patient. Yes, California won a victory with Peruta. Don't you want it to be settled at the Supreme Court once and for all?

Gura never said that the case was moot. He said that the Peruta dispute is moot, because Gore is off the case. It's only a matter of time.

Gura is playing a game. It's called chess.
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