2019 Fouts/Tolentino v Becerra: 10-17-22 Vacated and Remanded

[Paladin]

Originally Posted by Paladin

IIRC, next step is setting CA9 3-judge appeals panel orals. Has that been done yet?

If yes, when are orals?

If not, when will orals be set?

[MajorSideburns]

I was linked here after posting in the Duncan thread. I haven't had a chance to read the latest appeal but I hope the lawyers fighting for this are paying attention to the Duncan case and will borrow the state's own arguments in that case to use against them. In Duncan, the state argues that high capacity assault rifles were not in "common use" at the time the 2nd Amendment was created and therefore not covered by the bill of rights because the founding fathers could have never foreseen 100 round AR15 drum magazines. So, surely the founding fathers were well aware of wooden sticks after fighting a war for independence from the greatest military of the time?

[Lonestargrizzly]

Originally Posted by MajorSideburns

I was linked here after posting in the Duncan thread. I haven't had a chance to read the latest appeal but I hope the lawyers fighting for this are paying attention to the Duncan case and will borrow the state's own arguments in that case to use against them. In Duncan, the state argues that high capacity assault rifles were not in "common use" at the time the 2nd Amendment was created and therefore not covered by the bill of rights because the founding fathers could have never foreseen 100 round AR15 drum magazines. So, surely the founding fathers were well aware of wooden sticks after fighting a war for independence from the greatest military of the time?

The way I see it sticks were either the 3rd or 4th weapon considering punches, kicks, and either rocks or sticks were the 3rd.

[Paladin]

[abinsinia]

They should make a motion to set aside the judgement or something, summary reversal or whatever.

[Paladin]

Is the final pre trial conference still set for Oct 18?

[TruOil]

Originally Posted by Paladin

Is the final pre trial conference still set for Oct 18?

Any further actions in the trial court were mooted by the entry of judgment and then by the appeal. Nothing will happen in the trial court until, at the earliest, the final determination of the appeal.

[Paladin]

Originally Posted by TruOil

Any further actions in the trial court were mooted by the entry of judgment and then by the appeal. Nothing will happen in the trial court until, at the earliest, the final determination of the appeal.

Is that an appeal against the “entry of judgment”?

[Paladin]

Originally Posted by TruOil

Any further actions in the trial court were mooted by the entry of judgment and then by the appeal. Nothing will happen in the trial court until, at the earliest, the final determination of the appeal.

ETA?

[BobB35]

From the website, It appears as the order from last Sept has been vacated by the appeals court and the case is back with Benetiz to readjudcate in light of Bruen. So i betting there will be some action and the Baton ban could be overturned, because the original ruling relied on "Longstanding" as the reason and that really doesn't apply now.

https://www.courtlistener.com/docket...&order_by=desc

Oct 17, 2022

NOTICE of Spreading the Mandate: The September 22, 2021 judgment has been vacated by order of the Court of Appeals. This case has been remanded for further proceedings consistent with the United States Supreme Courts decision in New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2228 (2022).This Court hereby spreads the mandate upon the minutes of this Court. The Defendant shall file any additional briefing that is necessary to decide this case in light of Bruen within 45 days of this Order. Plaintiffs shall file any responsive briefing within 21 days thereafter. This Court will then decide the case on the briefs and the prior record or schedule additional hearings. (smy1) (Entered: 10/17/2022)

https://storage.courtlistener.com/re...44922.47.0.pdf

[Paladin]

Originally Posted by BobB35

From the website, It appears as the order from last Sept has been vacated by the appeals court and the case is back with Benetiz to readjudcate in light of Bruen. So i betting there will be some action and the Baton ban could be overturned, because the original ruling relied on "Longstanding" as the reason and that really doesn't apply now.

https://www.courtlistener.com/docket...&order_by=desc



https://storage.courtlistener.com/re...44922.47.0.pdf

So with “Speedy Benetiz” we’re looking at a DC/TC decision in late Dec or Jan.

[Paladin]

Originally Posted by BobB35

From the website, It appears as the order from last Sept has been vacated by the appeals court and the case is back with Benetiz to readjudcate in light of Bruen. So i betting there will be some action and the Baton ban could be overturned, because the original ruling relied on "Longstanding" as the reason and that really doesn't apply now.

https://www.courtlistener.com/docket...&order_by=desc

Originally Posted by Paladin

So with “Speedy Benetiz” we’re looking at a DC/TC decision in late Dec or Jan.

Defendant submitted supplemental briefing on Dec 1st.

Status conference on Dec 12

[AdamVIP]

Did anything happen with this one on the 12th?

[eaglemike]

Originally Posted by AdamVIP

Did anything happen with this one on the 12th?

It's been documented in other threads. Judge B asked the state to provide chronological list of laws affecting arms since signing of the 2A and up to 20 years after 14th adopted. List includes what was regulated, how, and if challenged or repealed, other changes. State attorneys asked to include list up to current, Judge B said ok, do it, but may or may not consider this separate list was the impression I got.

30 days for the list
30 days after that for supporting briefs
10 days after that for responding briefs
20 days from the 12th to agree on depositions.

This is short version, much discussion in other threads. MetalGod and others were there too.
State wanted at least 90 days for add'l discovery. Judge B said no, let's get this done. Some other stuff from the state, but Judge B not putting up with nonsense.

[abinsinia]

It seems like Benitez may flip his ruling on this one.

In the original case he relied on a law banning billy clubs that was created in California in the early 1900's , and he assumed that was a "long standing" law and "that's the end of it"..

Now that's flipped around, because laws from the early 1900's are not "long standing" enough..

At the founding I think they banned carry of some blunt objects , but not possession and carry which is what California does.

So I don't know how he will rule on this one.

[Paladin]

Originally Posted by AdamVIP

Did anything happen with this one on the 12th?

As far as us, no. Have a sandwich and take a nap until Feb 20. Then expect fireworks as Benitez hammers the antis in the four Dec 12 cases.

[Metal God]

Plaintiffs lawyers said they were going to file a 35 page brief right w
Away in court on the 12th of this month . I'm particularly interested in the dangerous and unusual argument they plan to put forth in that brief. Does anyone have a link to that , it should be in by now ?

[Paladin]

Originally Posted by Metal God

Plaintiffs lawyers said they were going to file a 35 page brief right w
Away in court on the 12th of this month . I'm particularly interested in the dangerous and unusual argument they plan to put forth in that brief. Does anyone have a link to that , it should be in by now ?

From Alan Beck’s FB page:
https://pdfhost.io/v/R4HfvZ5dz_Fouts...illwD38uWEuGIY

[Metal God]

Thanks

[Paladin]

A question for those who’ve read the briefs. I assume there has been a preliminary discussion on whether batons are even Arms protected by the 2A. Will there be much spillover benefit for knife rights in CA9 (including California) from a win in this case? Was there in the first Benitez decision?

This still puts a smile on my face all these decades later. “That’s not a knife….”



https://youtube.com/shorts/66niqIQ1f6c

[eaglemike]

Originally Posted by Paladin

A question for those who’ve read the briefs. I assume there has been a preliminary discussion on whether batons are even Arms protected by the 2A. Will there be much spillover benefit for knife rights in CA9 (including California) from a win in this case? Was there in the first Benitez decision?

This still puts a smile on my face all these decades later. “That’s not a knife….”

https://youtube.com/shorts/66niqIQ1f6c?feature=share

In court, Benitez definitely referred to knives and billys as arms. To get everything fully defined, there might need to be another suit - but just a guess. Judge B is a thorough writer, and might at least make reference.

[Metal God]

Yeah he want’s knives , daggers , metal knuckles and others included in the spreadsheet of restricted arms . This leads me to believe they will be included .

Interestingly it appears I’ve not only been carrying an illegal knife for years maybe decades, I also own a baton from when I did security about 30 years ago . As to the knifes , I just assumed if big 5 or Turners sales them , I could carry it .

I had no idea billies and batons were illegal to even own until reading the current brief .

[Paladin]

Originally Posted by Metal God

Yeah he want knives , daggers and others included in the spreadsheet of restricted arms . This leads me to believe they will be included .

Interestingly it appears I’ve not only been carrying an illegal knife for years maybe decades, I also own a baton from when I did security about 30 years ago . As to the knifes , I just assumed if big 5 or Turners sales them , I could carry it .

I had no idea billies and batons were illegal to even own until reading the current brief .

There’s also that stupid law limiting Californians to 2.5 oz of pepper spray or less. While hiking (coyotes, bobcats, mountain lions, black bears) or walking my neighborhood (dogs) I’d prefer to open carry a at least 5 oz spray. I’m sure people who don’t want to carry a knife or a gun might also prefer larger containers of OC.

[Paladin]

Originally Posted by Metal God

Yeah he want knives , daggers and others included in the spreadsheet of restricted arms . This leads me to believe they will be included .

Interestingly it appears I’ve not only been carrying an illegal knife for years maybe decades, I also own a baton from when I did security about 30 years ago . As to the knifes , I just assumed if big 5 or Turners sales them , I could carry it .

I had no idea billies and batons were illegal to even own until reading the current brief .

Did Benitez get into Open vs Concealed Carry of Arms (batons or knives)? If so, we might get some interesting dicta….

[Metal God]

No and the fouts case as far as I can tell is only about possession not the carry aspect . I don’t think the judge will get into the carry aspect because none of the 4 cases he has co- mingled have a carry element to them .

[abinsinia]

Here are Fouts spreadsheet variants. Miller and Duncan had 2, Rhodes and Fouts now have three.

https://storage.courtlistener.com/re...44922.60.1.pdf

https://storage.courtlistener.com/re...44922.60.2.pdf

https://storage.courtlistener.com/re...44922.60.3.pdf

[SpudmanWP]

11 of the expected 12 spreadsheets have been combined into a single sheet.

The only missing item is the aforementioned Miller Plaintiff's response.

https://airtable.com/shrVnkmENgDHNARBF

I'll be maintaining the table in the Miller thread:
https://calguns.net/calgunforum/show....php?t=1552764

[abinsinia]

MINUTE ORDER issued by the Honorable Roger T. Benitez: The State defendants are directed to file a brief which identifies the best historical regulation that is a proper analogue and relevantly similar to a statewide prohibition on possession of a billy club. The brief shall be limited to five pages and shall be filed with the brief currently due 30 days after the filing of the law list. (no document attached) (gxr) (Entered: 02/07/2023)

This order just came in for Rhode and Fouts. I guess the spreadsheets were not enough.

[press1280]

Originally Posted by abinsinia

This order just came in for Rhode and Fouts. I guess the spreadsheets were not enough.

This order will likely doom any chance the state had.

[abinsinia]

Here's the five page brief from the State,

https://storage.courtlistener.com/re...44922.64.0.pdf

[Drivedabizness]

What a bunch of maroons. Some people need to lose their bar cards.

[Paladin]

Fouts’ 2nd Supplemental Brief

https://pdfhost.io/v/9F5QF1tYv_Fouts...riDxwNuSctSly4

[abinsinia]

Fouts Plantiff's reponse brief.,

https://storage.courtlistener.com/re...44922.65.0.pdf

[command_liner]

Originally Posted by Paladin

As far as us, no. Have a sandwich and take a nap until Feb 20. Then expect fireworks as Benitez hammers the antis in the four Dec 12 cases.

OK: we are refreshed after the nap. Now what?

[Paladin]

Originally Posted by command_liner

OK: we are refreshed after the nap. Now what?

We wait for the s storm to start when “Speedy Benitez” starts releasing those four decisions. My guess is at least one within the next month.

[Usual_Suspect]

Originally Posted by Paladin

We wait for the s storm to start when “Speedy Benitez” starts releasing those four decisions. My guess is at least one within the next month.

It will be the usual rinse and repeat storm, Appeal and delay until there are no appeals and delays left, then pass a new law that will end up going the same rulings and route. If they put those legal fees into mental health services for those that need them......

[abinsinia]

Defendants reply brief,

https://storage.courtlistener.com/re...44922.67.0.pdf

[DolphinFan]

After reading the states Briefs I'm embarrassed as a taxpayer that this is the quality of attorney we hire

[ritter]

Originally Posted by DolphinFan

After reading the states Briefs I'm embarrassed as a taxpayer that this is the quality of attorney we hire

In fairness, they are writing exclusively for CA9 who has historically never met a 2A issue they weren't happy to interest balance for the state. Plus, they don't have much to work with. But yes, the arguments boarder on frivolous.

[abinsinia]

Lets be honest, the states lawyers don't have much to work with ..