Young v. Hawaii (CA9); Dismissed with predjudice 12-16-22

[sfpcservice]

Guys if we win OC, you will get your CCW from the CA legislature super fast.

[John Browning]

Originally Posted by wolfwood

I'll try and type something up later today. I am in NY for work so I am a little busy right now.

Well done, sir.

[Paladin]

As of a few minutes ago, there's not a peep about this case on the 3 major national network's news homepages:

https://abcnews.go.com/

https://www.cbsnews.com/

https://www.nbcnews.com/

Or their SFBA local news homepages:

http://abc7news.com/

https://sanfrancisco.cbslocal.com/

https://www.nbcbayarea.com/

Me thinks the major news sources are conspiring to keep The People in the dark re. their Right to Bear Arms openly!

Maybe we should all call our sheriffs tomorrow (or via their FB pages) and ask them when we will be able to legally carry openly under the Young court decision?

[ajb78]

SF Chronicle has a article on it now
https://www.sfchronicle.com/nation/a...s-13101477.php

[Paladin]

Me thinks it might be time to start thinking about and planning for LOC get togethers like some did back in 2010: Starbucks, California Kitchen, ...

I wonder how many Starbucks there are in SF?

[phdo]

Originally Posted by Paladin

Me thinks it might be time to start thinking about and planning for LOC get togethers like some did back in 2010: Starbucks, California Kitchen, ...

I wonder how many Starbucks there are in SF?

Shoot me a PM when you do. I want to come and take pictures of you being harassed by LEOs.

[Paladin]

Originally Posted by mrrabbit

You mean UOC get togethers?

=8-|

Not this time....

[moleculo]

I remember posting in another thread quite a few years ago that I thought winning our right to carry within CA would come from some action taken outside of CA. At the time I thought that would be a result of some litigation by SAF since they were recently coming off of wins. Noone had any idea at the time that it would be Wolfwood instead of SAF but the point looks like it may still hold up. That point of view was taken as a personal assault on CGF "strategy" so all of the "right people" went into full frontal assault mode and their groupies piled on. LMAO!!!!!!

Congrats Wolfwood on the win and I'm pretty optimistic that this one will ultimately win out when all appeals are exhausted.

[Paladin]

Originally Posted by phdo

Shoot me a PM when you do. I want to come and take pictures of you being harassed by LEOs.

It was no big deal when I was part of a group meet up -- but did not UOC -- in Walnut Creek's California Kitchen. There were lots of cops, but no problems. This was with the meetups where LEAs were informed ahead of time where and when the event was taking place.

Of course, there were folks who just did it on their own and had cops respond to "man with a gun" calls. Those weren't as low drama.... All too predictable (and avoidable).

But only a few weeks later I saw the MSM attack us and that's when I (and many others) said no more big group meet ups, things are turning south, if you feel a need to UOC for self-defense, go for it, but not as a group.

[CurlyDave]

Originally Posted by TruOil

There are two main directions this case can go right now. Hawai'i can take its lumps and allow the case to go back to the trial court for, ultimately, an order invalidating their categorical ban of open carry. At that point, they can start issuing permits the same as they would for any security company personnel, or they can pass a new law that contains the same "good cause" requirement that is included in their ccw law. Which of course would mean virtual no issue. That would likely mean another lawsuit, with the state arguing, even under Heller, that "reasonable restrictions" can be imposed on the carriage of firearms in public. That would be appealed....and by now five or six years have passesd with no open carry, and perhaps even odds that they will prevail in both the trial court and the court of appeal.

The other course is to seek en banc, and they have a better than even chance of winning, given what the en banc panel did to Peruta, but the risk is that the Supreme Court will have Kavanaugh by the time the cert petition reaches it. And that would open a whole new can of worms if cert were granted.

Will Hawai'i take the safe route or the risky route? Or will the Ninth grant en banc on its own motion, sweeping up Nichols as it goes?

Or, there could be a good outcome.

If there is no appeal and no en banc, HI essentially becomes shall-issue open carry. I can't think of a better place for this to happen, since a lot of the local economy is tourist based and any significant number of locals openly carrying is going to be viewed as a negative by tourists.

There may be a lot of pressure to issue concealed carry permits just to keep the tourist dollars flowing. Thus pointing the way for CA and the rest of the 9th circuit.

[Paladin]

Originally Posted by Paladin

Me thinks it might be time to start thinking about and planning for LOC get togethers like some did back in 2010: Starbucks, California Kitchen, ...

I wonder how many Starbucks there are in SF?

Well, one person says they're up for a LOC get together.



Are you guys sure you don't want to join us?

[Paladin]

LA Times article re. Young decision:
http://www.latimes.com/nation/la-na-...724-story.html

[press1280]

Originally Posted by TruOil

There are two main directions this case can go right now. Hawai'i can take its lumps and allow the case to go back to the trial court for, ultimately, an order invalidating their categorical ban of open carry. At that point, they can start issuing permits the same as they would for any security company personnel, or they can pass a new law that contains the same "good cause" requirement that is included in their ccw law. Which of course would mean virtual no issue. That would likely mean another lawsuit, with the state arguing, even under Heller, that "reasonable restrictions" can be imposed on the carriage of firearms in public. That would be appealed....and by now five or six years have passesd with no open carry, and perhaps even odds that they will prevail in both the trial court and the court of appeal.

The other course is to seek en banc, and they have a better than even chance of winning, given what the en banc panel did to Peruta, but the risk is that the Supreme Court will have Kavanaugh by the time the cert petition reaches it. And that would open a whole new can of worms if cert were granted.

Will Hawai'i take the safe route or the risky route? Or will the Ninth grant en banc on its own motion, sweeping up Nichols as it goes?

It's hard to read the opinion as anything other than shall-issue. I'm assuming if the state or county tries to fool around by thinking they can just tweak their open carry law to "theoretically" allow for anyone to get an OC permit but just deny everyone that they'll be smacked down. If the District court allows it, then I assume the issue comes back up for appeal to the exact same panel?

[marcusrn]

Congratulations George Young and great job Wolfwood! Kind thanks and praise to Justices Sandra Ikuta and Diarmuid O Scannlain for their erudite work.
Mark Cleary

[marcusrn]

Special thanks to Thomas Palmer and Shelly Parker for being exemplary human beings.

[lp3056]

Originally Posted by marcusrn

Congratulations George Young and great job Wolfwood! Kind thanks and praise to Justices Sandra Ikuta and Diarmuid O Scannlain for their erudite work.
Mark Cleary

^^^ This times 1000000000000000000000000000000000000000

[baggss]

Originally Posted by Offwidth

I do not see how you can spin this development as anything but good news.

This is CalGun. Where pessimism is considered a virtue!

[2ajunkie]

Originally Posted by CalAlumnus

Seems likely to me that either the 9th or SCOTUS (or both) find that some manner of carry is protected, but the state can regulate the manner. You can make public safety arguments in favor of either concealed or open.

If such a ruling occurs, CA statutes will have to change in response. I predict we’d become a shall issue concealed state, with open carry still banned.

In a perfect world this

Originally Posted by jwkincal

Too bad open carry isn't actually banned in CA; the 9th will point to the fact that in some (not small) portion of the state you can open carry, and say that satisfies the Intermediate Scrutiny.

SCOTUS is a different equation, but in its current composition, I'm not sure we'd be heard at all.

Reality this

[ronlglock]

Originally Posted by Paladin

Me thinks it might be time to start thinking about and planning for LOC get togethers like some did back in 2010: Starbucks, California Kitchen, ...

I wonder how many Starbucks there are in SF?

Yeah... aren’t UOC get togethers what got UOC banned? Probably best to stay under the radar with this one.


Sent from my iPhone using Tapatalk

[2ajunkie]

When the time comes, don’t be these idiots, no point in open carrying a long rifle.



Be this guy

[scbauer]

Originally Posted by marcusrn

Congratulations George Young and great job Wolfwood! Kind thanks and praise to Justices Sandra Ikuta and Diarmuid O Scannlain for their erudite work.
Mark Cleary

Yes! Thank you and everyone who was involved here. Let’s keep the momentum going!

[sfpcservice]

Originally Posted by press1280

It's hard to read the opinion as anything other than shall-issue. I'm assuming if the state or county tries to fool around by thinking they can just tweak their open carry law to "theoretically" allow for anyone to get an OC permit but just deny everyone that they'll be smacked down. If the District court allows it, then I assume the issue comes back up for appeal to the exact same panel?

This shill permit system is what Hawaii has and just got smacked for.

[LaCaGuy]

Doesn't the Milford act become null and void immediately?

[CCWFacts]

Originally Posted by LaCaGuy

Doesn't the Milford act become null and void immediately?

Exactly what I'm wondering. What does this mean for us? I hope no one here takes any action on this until we have clarity and until law enforcement here has gotten a memo about it, but I'm wondering, does this mean that the ban on loaded open carry is no longer generally enforceable? Should people in LA start applying for CCWs? If loaded open carry is legal, what about applying for a CCW with a good cause something like, "I desire a CCW so I can exercise my right to bear arms without attracting attention by open carrying"?

[sfpcservice]

I open carried my shotgun in my front yard for about 3.5 seconds yesterday to celebrate. Still unconvicted.

[mjv]

I assume that this will go en banc. Does anyone know what the time frame is for them to decide if it will in fact go en banc or if Hawaii will leave it be?

[press1280]

I think Hawaii has 2 weeks to request it. After that I don't think there's any time frame. It could be months before we find out if they go en banc or not.

[Big Ben]

Timeline for en banc determination is impacted by whether the Hawaii files a pettion for rehearing/en banc rehearing, a sua sponte call, etc. There are so many different factors that play into it, it would be tough to say that by "X" date, we'll know one way or the other.

Michel and Associates has a pretty good flow-chart of the decision tree on an en banc timeline: http://michellawyers.com/wp-content/...-Flowchart.pdf

Note the statement at the bottom: "at anytime ... the En Banc Coordinator can extend, suspend, or compress the time schedule."

If you add it up, it's a long while - 14 days here, 21 days there, "stop the clock" for a period, another 90 days after that, add another 14 days, another 35 days for amicus curiae ... on and on.

[Drivedabizness]

Originally Posted by wireless

I believe sua sponte is 90 days in the 9th circuit and 14 days for The State to appeal.

The time for sua sponte ran out in Peruta and they did it anyway

[Drivedabizness]

Originally Posted by LaCaGuy

Doesn't the Milford act become null and void immediately?

Oh Jesus

Great 2nd post

[Drivedabizness]

I think another possibility is what happened in Ohio...faced with case law precedent/court ruling to require OC (don't recall which), the Legislature (batsh*t crazy at the idea that people would be carrying openly) went, no BS, shall issue. I'd take that kind of result here in CA any day.

[Big Ben]

After spending a bit more time wading through the Michel and Associates flowchart, I see the following:

Losing party petition for rehearing - 14 days
Judges time to decide on petition - 21 days
Judge "stops the clock" - 14 days
5.4(b) Notice - 90 days
3-Judge panel decision on 5.4(b) notice - 14 - 21 days
Judge calls for en banc vote - 14 days
Time to respond to en banc call - 21 days
Active judges vote on en banc call - 14 days

Total that all up, and I get between 188 and 195 days - or sometime between January 28 and Feb 4, 2019. Obviously, I'm no lawyer, and I'm basing that strictly on my read of the Michel and Associates flowchart. I could be very, very wrong.

Edit: And as Drivedabizness points out, CA9 has shown that they're willing to exceed the timeline if they feel like it.

[rplaw]

Congratulations Wolfwood!

Now, stop goofing off and get to drafting the MSJ! Times awasting.

[press1280]

Originally Posted by LaCaGuy

Doesn't the Milford act become null and void immediately?

No. The decision still has to be final (no en banc), then likely an OC permit will be required. I do not see the state simply allowing unlicensed carry of any form.
The Nichols case will answer these questions.

[Californio]

When I was a kid in California, loaded open carry was common place where I lived, many times I saw guys packing a Single Action Colt in a gunbelt at Safeway, that was before the Mulford Act, I learned later, not enforced in my town, I went about my business carrying a .22 rifle across the handle bars of my bicycle, no one cared. A loaded pistol on horseback when going up in the mountains, SOP.

This before the great eastern invasion of California.

California would be better served to have shall issue CC as to not offend the current over-population of Marxist city sissies that now call California home.

Unfortunately that will entail forcing the Marxists to capitulate to the Republic which they will never do.

Catch22.

[Citizen_B]

Congrats wolfwood, Young, and team - great work.

My prediction is this case isn’t done yet. The anti-2A camp is in a pickle. If they pursue this further, there’s a real (though I think still unlikely) risk SCOTUS takes the case and rules the ban unconstitutional. If I was a betting man, my guess is they take the chance because the odds are in their favor and they have to save face for the progressives:

- En Banc and 9th rules “the 2A does not protect open carry, and that states can restrict at discretion” by a very narrow margin (tighter than the 7-4 Peruta).
- SCOTUS even with Kavanaugh narrowly declines taking the case as they aren’t motivated enough.

One more conservative Justice replacing one of the liberals is the only way I see us winning 2A cases.

Or, I could be wrong and the anti-2As decide to play it safe and let OC occur and deal with the (non) effects. If that happens, the Sheriffs in CA have an interesting dilemma of deciding if people planning to carry OC and dealing with “man with gun” calls is better than giving them the option of CC permits which most people want anyway.

[rplaw]

Originally Posted by press1280

No. The decision still has to be final (no en banc), then likely an OC permit will be required. I do not see the state simply allowing unlicensed carry of any form.
The Nichols case will answer these questions.

The decision in Nichols will create an OC permit system. The "stop and frisk" used against UOC'ers will become illegal because it's already not a crime to merely carry a firearm in most jurisdictions (including Ca if done according to the law on transportation). The checking to see if the gun is unloaded is a ploy to try to get around Constitutional standards that already prohibit such tactics. By requiring a permit to OC, the State gets past that since any officer can request to see your permit (identity papers) to verify if what you're doing is authorized. That's legal in most places because it would be targeted at reducing crime in the least invasive way.

What I don't think anyone is considering is whether those with a CCW will have the option of both methods under their more restrictive permit. At which point CC only as a permit becomes meaningless. it would have to be a "carry permit" rather than a "concealed carry permit".

If they don't have the dual option, then the OC only permit becomes an equal protection issue for those with the CCW based on background checks, costs, and so on. If someone with a CCW has a permit, why should they be forced to also undergo MORE checks for the less restrictive OC permit?

And, if the CCW crowd doesn't have to have both, then why does the OC permit not operate equally? A permit based on background checks and verifications shouldn't single out a special class of citizens.

If Young survives the en banc and forthcoming appeals, then Ca is in trouble with it's gun regulation bans.

[wireless]

Here are some reasons why I don't think CA-9 will get away with a may-issue permitting open carry scheme if Young becomes settled law.

One of the central holdings, page 1 of the opinion.

In determining the appropriate level of scrutiny to apply to section 134-9, the panel first held that the right to carry a firearm openly for self-defense falls within the core of the Second Amendment. The panel stated that restricting open carry to those whose job entails protecting life or property
necessarily restricts open carry to a small and insulated subset of law-abiding citizens. The panel reasoned that the typical, law-abiding citizen in the State of Hawaii was entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. The panel concluded that Hawaii’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violated the core of the Second Amendment and was void under any level of scrutiny.

From the very begenning of the majorities opinion:

YOUNG V. STATE OF HAWAII
OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Second Amendment
encompasses the right of a responsible law-abiding citizen
to carry a firearm openly for self-defense outside of the
home.

To summarize the history canvassed thus far: the important founding-era treatises, the probative nineteenth century case law, and the post-civil war legislative scene each reveal a single American voice. The right to bear arms
must include, at the least, the right to carry a firearm openly for self-defense.

E

But wait! The dissent says we have yet to consider the impact of historical “good cause” restrictions on the scope of the Second Amendment right to carry a firearm in public. According to the dissent, many states heavily restricted the
public carry of weapons absent good cause to fear injury to person or property. Dissent at 65–67. A review of the dissent’s evidence compels us to disagree.

The dissent erroneously characterizes surety laws as imposing a severe restriction on the public carry of weapons absent good cause to fear injury. And its analysis of the actual historical evidence is, in a word, cursory. While the
dissent focuses on the exception to the surety requirement for carriers with a specialized need for self-defense, it ignores the clearly limited scope of the requirement in the first place: only upon a well-founded complaint that the
carrier threatened “injury or a breach of the peace” did the good cause exception come into play, “by exempting even the accused” from the burden of paying sureties. Wrenn, 864 F.3d at 661. Thus, “[a] showing of special need did not expand carrying for the responsible; it shrank burdens on
carrying by the (allegedly) reckless.” [...]

Indeed, what is most troubling about the dissent’s historical “analysis” is that it reliably quotes the good cause exception to the surety requirements but hardly mentions the limiting citizen-complaint mechanism present in virtually every single one of its quoted sources. See The Statutes of Oregon 220 § 17 (Oregon, Asahel Bush 1854) (complainant must possess “reasonable cause to fear an injury, or breach of the peace”); The Revised Statutes of the Territory of
Minnesota 528 § 18 (Saint Paul, James M. Goodhue 1851) (complainant must possess “reasonable cause to fear an injury or breach of the peace”); The Revised Statutes of the State of Maine 709 § 16 (Hallowell, Glazier, Masters &
Smith 1847) (complainant must possess “cause to fear an injury or breach of the peace”); Statutes of the Territory of Wisconsin 381 § 16 (Albany, Packard, Van Benthuysen & Co. 1839) (complainant must possess “reasonable cause to
fear an injury or breach of the peace”); 1836 Mass. Acts 750 § 16 (complainant must possess “reasonable cause to fear an injury, or breach of the peace”). The dissent might wish to set aside the requirements to complain under surety laws, but we suspect those who actually did complain under such laws
would hesitate before treating the requirements so lightly. Were a complainant to bring an “unfounded, frivolous or malicious” claim that an arms carrier threatened the public peace, the magistrate would not only dismiss the complaint, but also hold the complainant “answerable to the magistrate
and the officer for their fees.” See, e.g., 1836

There's plenty more explaining why carry applies to the average law abiding citizen.

I do think if CA is forced into this they will make the permitting scheme more erroneous and cumbersome than it already is.

[MarCat]

Sincere congratulations to wolfwood. Very well done!

I think this is going to go sua sponte, similar as Peruta, but I like the way this was teed up. The 20 year track record of non-issuance is so stark that I think this case is going to be interesting if it gets to SCOTUS.

Hoo-Rah!

[Paladin]

Some thoughts I thought I'd share w/you guys.

Re. the future: I'm assuming that they do not appeal this loss, so this will be the fastest things move. If anything changes (someone appeals), timeline is longer. Some important items are not directly related, but indirectly.

1) Aug 08: we know if Hawaii appeals
2) Sept 04: Trump gets more judges on CA9?
3) Oct 01: Kavanaugh on SCOTUS at start of session?
4) Nov 06: fed elections, GOP keeps Senate?
5) mid Nov: appeal sua sponte by CA9? (If no appeal, file suit, (seek PI?) and ask for MSJ declaring Mulford Act unconstitutional under 2nd A?)
6) 2019 mid Feb to mid May: Nichols decision
7) fall 2019: If Nichols was a win and no appeals (14 + 90 days), plan LOC meet ups unless Sacto passes emergency LOC permit process, then get permits first (probably after 2020 Jan).
8) LOC meet ups (w/LE informed ahead of time re. time and place) in anti counties makes Sacto pass single LTC for LOC and CC, hoping the serfs will choose CCing rather than wasting LE resources responding to "man with a gun" calls due to LOCing.

Then we've WON!!! (go for ConCarry 5 to 10 years later... )

Re. LOC group meet ups, some ideas to consider:

(1) Choose location carefully. Get permission from management ahead of time. Explain the law.

(2) Have some obvious members of the group as non-carrying dedicated videographers.

(3) Have folks carry pepper spray for non-lethal defense against antis, if needed. If you inform LE ahead of time of your event, they'll probably be ready to handle these problems for you.

(4) Inform both the sheriff's office and the PD of the city where you'll meet, time and location.

(5) Consider informing the local media: TV, radio, print, web.

(6) Have some CCWers appear to be non-members for protection in case no LE presence and BGs try to rob/attack you.

(7) Know the members of the group. We don't need needless drama or to have antis cause us to look bad, esp not w/LE or media.... Choose leadership, folks w/good public speaking/PR skills, and best to have a lawyer or two present as non-carriers. Handguns only.

If I'm not around (we're all human and all it takes is one auto accident... ), do a group meet up in Ala Co in my memory: f--- Sheriff Ahern for restrictive GC!

Why would I still want to LOC?

(1) If temperature changes or I go to different part of SFBA (from SF down to Silicon Valley), I want to be able to take off my sweater, jacket or coat and still carry.

(2) If I should bend over, reach up or a wind gust expose my CCW, I don't want to lose my permit because someone calls it in.

(3) When hiking, camping, backpacking, XC/backcountry skiing, the first indication most victims get that a mountain lion is in the area is the sound of fangs cracking their skulls and the feeling of claws in their back or shoulders.... I don't want to have to deal with clearing a cover garment in the midst of all that. Similarly, in other recreation (biking, beach, jogging, etc), an exposed shoulder holster w/o cover garment might be the way to go. ETA: in a SHTF scenario (Rodney King Riots, Katrina, etc), I'd like to EDC a large semi (G19, G17) and OC would be the way to go for me.