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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 03-29-2019, 10:25 PM
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Default Livingston et al v Hawaii and Honolulu; USDC Hawaii (STAYED 6-11-19)

Chuck filed suit against Hawaii in a handgun carry case.

https://www.scribd.com/document/4036...-Carry-Lawsuit
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Old 03-30-2019, 7:31 AM
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I'm curious why this case now? How does it fit in the general scheme of things?
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Old 03-30-2019, 8:15 AM
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I have only read through the brief very quickly, and won't have time to carefully read it until later today or tomorrow, but initially two things stand out.

First, as a relatively minor thing, I note that the brief claims "State of Hawaii's and County of Honolulu's primary basis for seeking en banc review in Young...". I may be wrong but the County of Honolulu was not a party to petition for en banc hearing, the County of Hawaii, where Mr. Young lives and was denied a license, was and is (along with the state). You guys can't get who the parties in the case are correct? Not a good sign. I may be wrong, but I don't see anyone from the County of Honolulu listed on the petition for en banc. http://michellawyers.com/wp-content/...n-Banc_155.pdf

Secondly, Mr. Nichols prediction re this case on the 2ahawaii site was correct, as the brief asks for issuance of an open OR concealed carry license on the basis that denying such violates the right protected by the Second Amendment ("Hawaii's de facto ban on all manner of carry by ordinary citizens both implicates and violates the Second Amendment."). This can only mean that this lawsuit is intended to be decided at some distant future date when SCOTUS has presumably overruled the en banc Ninth Circuit decision in Peruta that there is no constitutionally-protected right to concealed carry. Since all courts in the Ninth Circuit are bound by that decision, asking, as this lawsuit does, that concealed carry be granted because it is a protected right, is, well, worse than useless. But I could be wrong. Someone set me straight. Please.

Last edited by surfgeorge; 03-30-2019 at 8:20 AM..
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Old 03-30-2019, 8:26 PM
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I see Michel and Associates on it....so I wouldn’t worry about missing things like parties. Also the second page explains how this is different than the current case.
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Old 03-31-2019, 5:39 AM
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Young still preserved both open and concealed, so whatever happens I would think he would be ahead of this case in any instance
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Old 03-31-2019, 7:24 AM
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Strategic.

Challenge an egregious law.

There is even a decent chance that you could now win at the Circuit level which would be quite interesting. . .

I suspect a 9th Circuit win might result in what might be considered a circuit split (with other circuits and with the 9th itself) and that might increase the probability that SCOTUS takes either this case or a similar case.

With the current SCOTUS make-up if this case got cert I'd expect it to be a highly likely win for the right to self-defense.

So I consider this to be good bait for SCOTUS whether directly or indirectly.

One other thing? If you have this well-constructed case moving through the 9th, we're less likely to see poorly conceived and argued cases being thrown out there and possibly sort of pre-empting the good cases.

I think it is a good move by a good organization and its team of highly skilled lawyers.
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Old 04-01-2019, 8:12 AM
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Quote:
Originally Posted by surfgeorge View Post
I have only read through the brief very quickly, and won't have time to carefully read it until later today or tomorrow, but initially two things stand out.

First, as a relatively minor thing, I note that the brief claims "State of Hawaii's and County of Honolulu's primary basis for seeking en banc review in Young...". I may be wrong but the County of Honolulu was not a party to petition for en banc hearing, the County of Hawaii, where Mr. Young lives and was denied a license, was and is (along with the state). You guys can't get who the parties in the case are correct? Not a good sign. I may be wrong, but I don't see anyone from the County of Honolulu listed on the petition for en banc. http://michellawyers.com/wp-content/...n-Banc_155.pdf

Secondly, Mr. Nichols prediction re this case on the 2ahawaii site was correct, as the brief asks for issuance of an open OR concealed carry license on the basis that denying such violates the right protected by the Second Amendment ("Hawaii's de facto ban on all manner of carry by ordinary citizens both implicates and violates the Second Amendment."). This can only mean that this lawsuit is intended to be decided at some distant future date when SCOTUS has presumably overruled the en banc Ninth Circuit decision in Peruta that there is no constitutionally-protected right to concealed carry. Since all courts in the Ninth Circuit are bound by that decision, asking, as this lawsuit does, that concealed carry be granted because it is a protected right, is, well, worse than useless. But I could be wrong. Someone set me straight. Please.
You are wrong.

Here is the County of Honolulu seeking en banc review of the Young matter as an amicus, with its primary basis being that the panel in that matter misinterpreted Hawaii law as limiting carry license issuance to only security guards: http://michellawyers.com/wp-content/...Banc_157-1.pdf

Even if we had made an oversight and confused the counties (or made a typo, or should have been more clear, etc.), you say that it would only be "a relatively minor thing" but then suggest our lawyering is generally suspect because of it, with: "Not a good sign."

This is your commentary a day after the same lawyers secured a victory striking down California's "large capacity magazine" ban?

Nobody is above critique or questions. But it can cross the line with context, and yours did.

I guess one can't expect much from someone who takes the legal analysis of a non-lawyer as gospel. It makes total sense to listen to him, who has achieved nothing with his efforts other than a criminal conviction, instead of the lawyers (one of which is arguably the best SCOTUS litigator of our time) who secured a victory for the right to carry from a Ninth Circuit panel in the Peruta matter, which was unfortunately overturned by an en banc panel, but provided the foundation for the Young opinion (these were the same lawyers who won the Duncan matter on Friday) right?

In case you don't understand that as a rhetorical question, the answer is: no.

Your (his) analysis of the concealed carry issue is utter nonsense. Just ask yourself (or him) this: if the Ninth Circuit dodged the right to carry question in Peruta by construing the plaintiffs' claims as seeking a right to carry concealed, then where a person challenges only a state's open carry restrictions when the state allows some mechanism to carry concealed (like CA with CCWs), why can't the Ninth Circuit dodge the open carry question the same way and say: "there is no right to open carry (or we decline to say whether there is) and the plaintiff did not show that he is deprived of his right to bear arms because of the availability of a CCW?"

If you don't take my word for it, here is another actual lawyer explaining things: https://fedsoc.org/commentary/public...t-to-bear-arms

You've been set straight. You're welcome.
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Old 04-01-2019, 8:18 AM
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@SBRADY

THANK YOU and your firm for all you do.
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  #9  
Old 04-01-2019, 9:12 AM
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@SBRADY

THANK YOU and your firm for all you do.
I appreciate it, but there is no need to thank us.

Thank all those who support NRA and CRPA, they (hopefully you) made this possible.

We are just doing our job.

We don't need praise but we don't need unwarranted attacks either.
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Old 04-01-2019, 9:36 AM
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Quote:
Originally Posted by sbrady@Michel&Associates View Post
I appreciate it, but there is no need to thank us.

Thank all those who support NRA and CRPA, they (hopefully you) made this possible.

We are just doing our job.

We don't need praise but we don't need unwarranted attacks either.
Why haven’t you killed NFA rules you hacks

I kid I kid!!
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  #11  
Old 04-01-2019, 10:03 AM
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This case in my non-lawyer eyes seems to fit perfectly with Young. While Young sought to set the stage for questions left in the wake of Perulta and this sets the stage for "good cause".
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Old 04-02-2019, 2:16 PM
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Strategically, they are trying to box in the State and City. In Young v. Hawaii, the 3 judge panel (arguably) ruled that Hawaii's restrictive handgun carry licensing scheme violated the 2nd Amendment b/c it ONLY allowed non-law enforcement personal to obtain a CCW if they were armed security guards.

On petition for en banc review, the State and City argue that Hawaii law does allow citizens who aren't armed security guards to obtain CCWs (despite the fact that they have never granted a CCW to a non security guard). Therefore they argue the panel made a mistake of law and should be reversed.

In the current suit, the plaintiffs are explicitly applying for a CCW as a non-armed security guard civilian saying they should be granted a CCW. Hawaii law only allows for CCWs to MAY be issued when the claimant has a credible and immediate/emergency fear of bodily harm. The claim is that this specific allowance is not broad enough and by denying the plaintiffs a CCW when they meet all the objective criteria but cannot demonstrate a sufficiently credible and immediate threat that this violates the 2A.
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Old 04-02-2019, 10:33 PM
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Strong work Sean. Hope all is well for you and your family.
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Old 04-08-2019, 12:50 PM
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https://www.nratv.com/videos/relentl...rry-permit-ban

sean got interviewed.
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Old 04-08-2019, 3:40 PM
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Quote:
Originally Posted by sbrady@Michel&Associates View Post
You are wrong.

Here is the County of Honolulu seeking en banc review of the Young matter as an amicus, with its primary basis being that the panel in that matter misinterpreted Hawaii law as limiting carry license issuance to only security guards: http://michellawyers.com/wp-content/...Banc_157-1.pdf

Even if we had made an oversight and confused the counties (or made a typo, or should have been more clear, etc.), you say that it would only be "a relatively minor thing" but then suggest our lawyering is generally suspect because of it, with: "Not a good sign."

This is your commentary a day after the same lawyers secured a victory striking down California's "large capacity magazine" ban?

Nobody is above critique or questions. But it can cross the line with context, and yours did.

I guess one can't expect much from someone who takes the legal analysis of a non-lawyer as gospel. It makes total sense to listen to him, who has achieved nothing with his efforts other than a criminal conviction, instead of the lawyers (one of which is arguably the best SCOTUS litigator of our time) who secured a victory for the right to carry from a Ninth Circuit panel in the Peruta matter, which was unfortunately overturned by an en banc panel, but provided the foundation for the Young opinion (these were the same lawyers who won the Duncan matter on Friday) right?

In case you don't understand that as a rhetorical question, the answer is: no.

Your (his) analysis of the concealed carry issue is utter nonsense. Just ask yourself (or him) this: if the Ninth Circuit dodged the right to carry question in Peruta by construing the plaintiffs' claims as seeking a right to carry concealed, then where a person challenges only a state's open carry restrictions when the state allows some mechanism to carry concealed (like CA with CCWs), why can't the Ninth Circuit dodge the open carry question the same way and say: "there is no right to open carry (or we decline to say whether there is) and the plaintiff did not show that he is deprived of his right to bear arms because of the availability of a CCW?"

If you don't take my word for it, here is another actual lawyer explaining things: https://fedsoc.org/commentary/public...t-to-bear-arms

You've been set straight. You're welcome.
Emphasis mine.





Stolen. The Word is Stolen.

Just like you correctly summarized in your well spoken NRA interview.

This cannot be Emphasized Enough.

What the 9th did was to put their political ideology ahead of the
courts reputation as a Neutral, Fair, arbitrator, which damages
the publics perception of the court.





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Old 04-08-2019, 3:43 PM
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Thank you.

That was worth watching.
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Old 04-08-2019, 4:01 PM
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Just a tiny bit of stage fright tongue tied at first. But damn did he pick up the pace and finish strong!!!
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Old 04-11-2019, 12:30 PM
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Default Motion for Preliminary Injunction Filed

https://urldefense.proofpoint.com/v2...7awzTn_jZtg&e=
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Old 04-11-2019, 12:30 PM
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http://michellawyers.com/wp-content/...Injunction.pdf


nra filed a PI
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Old 04-11-2019, 12:59 PM
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Hector them like rabid ankle biting chihuahuas until they give up!

I mean, Good Job!
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Old 04-17-2019, 5:52 AM
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https://www.scribd.com/document/4066...ign-Livingston

State is filing to move the NRA's case to a different judge
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Old 04-17-2019, 6:35 AM
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Quote:
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https://www.scribd.com/document/4066...ign-Livingston

State is filing to move the NRA's case to a different judge
Thank you for the update.

Did some more thinking on this. As a non-lawyer this is not necessarily a good thing!!!

I'm not convinced that they have a good argument since this is not consolidating cases and Judge Gillmor won't be hearing two similar cases, the judge will be hearing a case which is similar to one which was previously argued and that does not seem to me to increase efficiency or promote economy unless one assumes that the judge will ignore the plaintiff and defendant and simply issue the same ruling that was previously issued in the other case.

But it would seem to be worth a try. My guess is that their real point is to get the same ruling issued and have the 9th Circus somehow consolidate Livingston with Young and then keep it frozen with an en banc panel which is heavily biased against the right to self-defense.

This would mean that the Young decision which will be crafted to be as restrictive as possible will be precedent in the 9th Circuit.

If Gillmor does not get this case and a different judge rules differently, then it would seem less likely that a court which is being altered by new justices will choose to consolidate Livingston with Young and you could end up with a Young precedent being trumped with a Livingston precedent which might be much more respectful of our freedom.

Clever lawyering by our lawyer champions to have filed Livingston and clever of the fascists to try to circumvent their move.

But again, I'm no lawyer and could be way off on my speculating/reading.
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Last edited by OleCuss; 04-17-2019 at 7:12 AM..
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Old 04-17-2019, 8:39 AM
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I keep reading all those arguments about "some" carry, and they are not convincing to me. I am not a lawyer, but I am an expert in several other fields, and I believe that a good argument necessarily needs to be able to sound convincing to a person of average intelligence.

Under that logic what we have in California is acceptable. CCW is available for more than half the state. So it is not banned. Local sheriffs are free to review and restrict it (so I can't get it for example) - but that would fly as "sensitive" and "tailored" and what not. Arguing for "some" form of carry, readily accepting regulations and what not will not get us very far.

On the other hand the idea that open carry is a constitutional right and no regulations of "form" etc are acceptable seems much more convincing to me.
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Old 04-17-2019, 10:17 AM
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25

04/16/2019

EO: Defendant Connors' Motion Under L.R. 40.2 to Reassign Case, ECF No. 23 , is DENIED. The Ex Parte Motion to Shorten Time for Hearing, ECF No. 24 , is therefore DENIED as moot. (CHIEF JUDGE J. MICHAEL SEABRIGHT)(rlfh) (Entered: 04/16/2019)
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Old 04-17-2019, 10:26 AM
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Thank you!

Made my day better!
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Old 04-17-2019, 9:15 PM
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Post by Mr. Nichols in another forum:

Today, the Hawaii AG filed a motion to stay the case pending the en banc decision in Young v. Hawaii.

27 - Livingston v. Ballard - Motion to stay.pdf

https://2ahawaii.com/index.php?actio...0;attach=53096
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Old 04-20-2019, 4:14 AM
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Quote:
Originally Posted by surfgeorge View Post
Post by Mr. Nichols in another forum:

Today, the Hawaii AG filed a motion to stay the case pending the en banc decision in Young v. Hawaii.

27 - Livingston v. Ballard - Motion to stay.pdf

https://2ahawaii.com/index.php?actio...0;attach=53096
I think this may get granted and all 2A cases will come to a halt pending NYSRPA.
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Old 04-20-2019, 4:51 AM
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It doesn't actually make any sense to stay the case at that level. So far as I can tell it hasn't even been heard so while there may be similarities to other cases, I don't think it has yet reached a level where a stay makes sense.

One could argue that once the case has been heard and a judgment rendered that then the case might be found most suitable for a stay once it has hit the Circuit level.

But right now, without the case even having been heard and a judgment handed down I don't know how you can reasonably say that the case is at a stage for a stay.
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Old 06-11-2019, 8:01 AM
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stayed

https://www.scribd.com/document/4130...ton-Stay-Order
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Old 06-15-2019, 9:43 AM
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stayed
Direct PDF download link

It's stayed pending Young, because they deal with the same law and the same issues, and Young is stayed pending NYSPR, because the Young en banc wants to see what impact that's going to have on firearms laws. That makes sense. No one knows what the NY case result is going to be, except that it's not going to be narrowly addressing NYC's very strange transportation rules. And it seems like SCOTUS itself is holding other cases in related areas (bear, public carry / transportation).

Early / first half next year will be exciting! This NY case is going to have more real-world consequences than Heller I'm guessing.
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File Type: pdf 413045244-Livingston-Stay-Order.pdf (148.4 KB, 3 views)
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Old 06-15-2019, 1:31 PM
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It's stayed pending Young, because they deal with the same law and the same issues, and Young is stayed pending NYSPR, because the Young en banc wants to see what impact that's going to have on firearms laws. That makes sense. No one knows what the NY case result is going to be, except that it's not going to be narrowly addressing NYC's very strange transportation rules. And it seems like SCOTUS itself is holding other cases in related areas (bear, public carry / transportation).

Early / first half next year will be exciting! This NY case is going to have more real-world consequences than Heller I'm guessing.
Don't forget Pena -- it has nothing to do with RBA (directly/primarily), but only with RKA (i.e., buy/own).
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Old 06-15-2019, 6:07 PM
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Don't forget Pena -- it has nothing to do with RBA (directly/primarily), but only with RKA (i.e., buy/own).
That too. It's obvious the lower courts are making up various different approaches, tests and standards depending on their whims. Seems like SCOTUS is going to give some more clear guidance, which was not given in Heller. That guidance obviously must be about outside the home issues, which is the subject of the NY case, but could also be applicable to the whole 2A. Cool!
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