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

[Paladin]

Originally Posted by mit31

Procedural? The order on 3/17 seems more informative:

ORDER: (1) Granting 33 Motion to Joint Motion Amend Scheduling Order; and (2) Issuing Scheduling Order. Final Pretrial Conference reset for 7/19/2021 10:30 AM before Judge Roger T. Benitez. Memorandum of Contentions of Fact and Law now due by 6/21/2021. Proposed Pretrial Order now due by 7/12/2021. Signed by Magistrate Judge Jill L. Burkhardt on 3/17/2021. (mme) (Entered: 03/17/2021)

[Dvrjon]

Pacer Monitor

Monday, June 14, 2021
38

3 pgs order Order on Motion to Amend/Correct Tue 06/15 8:16 AM
ORDER: (1) granting 37 Joint Motion to amend Scheduling Order; (2) Issuing Amended Scheduling Order. Memorandum of Contentions of Fact and Law due by 9/20/2021. Proposed Pretrial Order due by 10/12/2021. Final Pretrial Conference set for 10/18/2021 10:30 AM in Courtroom 5A before Judge Roger T. Benitez.. Signed by Magistrate Judge Jill L. Burkhardt on 6/14/2021. (jpp)

[BeAuMaN]

Originally Posted by Dvrjon

Pacer Monitor

Here's the Courtlistener link since it crowdsources pdfs from those who use the RECAP extension when downloading from PACER.
https://www.courtlistener.com/docket...&order_by=desc


Uploaded Order:
https://storage.courtlistener.com/re...44922.38.0.pdf

[FirearmFino]

ORDER denying Plaintiff's Motion for Summary Judgment and granting Defendants' Cross-Motion for Summary Judgment. Signed by Judge Roger T. Benitez on 9/22/2021.

Since 1917, the State of California has made it a crime for the average citizen to possess a weapon known as a billy. Like S&H Green Stamps, over the years the billy’s popularity has come and gone, yet the billy law remains. But for the threat of violating the criminal statute, Plaintiffs would possess a billy or baton for self-defense. Plaintiffs challenge the law as an infringement on their federal constitutional right to keep and bear arms. In this case of first impression, both sides move for summary judgment. Because the 104-year-old state law qualifies as “longstanding,” it is a permissible restriction on a dangerous, but less-than-lethal, unusual weapon. Therefore, Plaintiffs’ motion is denied and Defendants’ motion is granted.

[hitmissone]

So what does all this mean?????? Most of the links won't open

[Bhobbs]

Disappointed by Benitez letting the “longstanding” garbage stand.

[hitmissone]

Guess the ruling not a good one???

[pacrat]

St. Benitez is due for a defrocking, and needs to be sent back to grammar school for a remedial math class.

precedent precluding further analysis, because the 104-year-old regulation is longstanding, it is therefore beyond the sweep of the Second Amendment. Plaintiffs’
motion for summary judgment is denied and Defendants’ cross motion for summary
judgment is granted.
Dated September 22, 2021.

The SECOND AMENDMENT is the precedent, and since it was ratified in 1791.

It's 230 yrs far surpasses the 104 yr INFRINGEMENT he just allowed to stand.

[Dvrjon]

It will help if folks read the entire ruling before commenting. I have.

This isn’t about remedial math.

It’s about long-standing court precedence and history.

[pacrat]

Originally Posted by Dvrjon

It will help if folks read the entire ruling before commenting. I have.

This isn’t about remedial math.

It’s about long-standing court precedence and history.

Yeah it is. Which is just another COURT CREATED lameass justification for allowing "SHALL NOT BE INFRINGED".

TO BE INFRINGED.

example ..............

Judge to defendant in wife beating case.

judge ... Sir you are charged with spousal abuse for hitting your wife.

defndant .... But your honor, with all due respect, I've been hitting that beotch for decades.

judge ... Well Sir, I was unaware of that fact. In light of an established "long standing precedence". YOU ARE FREE TO GO. ALL CHARGES IN THIS MATTER ARE DISMISSED!

[Paladin]

Originally Posted by FirearmFino

ORDER denying Plaintiff's Motion for Summary Judgment and granting Defendants' Cross-Motion for Summary Judgment. Signed by Judge Roger T. Benitez on 9/22/2021.

Because the 104-year-old state law qualifies as “longstanding,” it is a permissible restriction on a dangerous, but less-than-lethal, unusual weapon.

Like machine guns: they weren’t “unusual” until they had been banned by the government.

Oh well, on to appeals court!

[Librarian]

Of course, whether this Court agrees or not, it is bound to follow binding precedent. So, in this case, if the regulation on the possession of a billy is a historically-approved prohibition, then it is deemed beyond the ambit of the Second Amendment and it will be upheld without further inquiry, as required. See Young, 992 F.3d at 783.

At page 12 of the pdf

Generally, 'we' want inferior courts, like the 9th, to follow what 'we' think is SCOTUS precedent in Heller. But inferior Federal courts must follow precedent in their Circuit. One might approach the 9th and argue to reverse that precedent, but an inferior court cannot do that.

[Lonestargrizzly]

How is a collapsible baton an unusual weapon when basically every LEO carries one?

[FirearmFino]

Notice of appeal

[curtisfong]

Not a lawyer, but a loss due to a "longstanding" argument is one of the better ways to get to an appeal, since it indicates that the challenge itself has no substantive flaws.

I could be totally wrong on this, of course.

[Dvrjon]

Originally Posted by pacrat

Yeah it is. Which is just another COURT CREATED lameass justification for allowing "SHALL NOT BE INFRINGED".

TO BE INFRINGED.

example ..............

Judge to defendant in wife beating case.

judge ... Sir you are charged with spousal abuse for hitting your wife.

defndant .... But your honor, with all due respect, I've been hitting that beotch for decades.

judge ... Well Sir, I was unaware of that fact. In light of an established "long standing precedence". YOU ARE FREE TO GO. ALL CHARGES IN THIS MATTER ARE DISMISSED!

Long-standing legal precedent of Western law against spousal abuse and generally, battery, precludes that result.

Of more concern is your basic premise that a husband has an inalienable, God-given Right to physically beat his wife, and that Right shall not be infringed.

Which part of the Constitution contains that?

[Dvrjon]

Some highlights from the Ruling:

Long-Standing Regulation:
Pg 26, line 6….

…as Heller II observed, “longstanding” “necessarily means it has long been accepted by the public . . . [and is] not likely to burden a constitutional right.” 670 F.3d at 1253. The weapon known as a billy has been the subject of regulation in at least twenty states -- beginning in the 1800’s and continuing to the present. The historical prevalence of nationwide restrictions is sufficient to conclude that government regulation of a billy has long been accepted by the public.54 Pena v. Lindley, 898 F.3d 969 (9th Cir. 2018), said, “‘longstanding, accepted regulations’ may come from the early- twentieth century and need not trace their roots back to the Founding, so long as their ‘historical prevalence and significance is properly developed in the record.” Id. at 1003- 04.55 California Penal Code § 22210’s prohibition on possessing an “instrument or weapon commonly known as a billy” passes this test.

Plaintiffs argue that the historical prevalence raises merely a rebuttable presumption of constitutionality and that they have rebutted the presumption.56

The assertion is unsupported by anything more than a scintilla of evidence. But it does not matter under Ninth Circuit precedent. As noted earlier, once an arms regulation qualifies as longstanding, it is upheld without further inquiry. Young, 992 F.3d at 783. Therefore, as there are no genuine issues of material fact requiring a trial, Plaintiffs’ motion for summary judgment is denied and Defendants’ motion for summary judgment is granted.

Lawful Purpose:
Page 27, line 6:

B. StepTwo–NotCommonlyOwnedforLawfulPurposes
If § 22210 was not a longstanding regulation, the Second Amendment analysis would move to step two. Young, 992 F.3d at 784. As applied to the California prohibition here, Heller would ask: is the weapon prohibited by § 22210 commonly possessed by law-abiding citizens for lawful purposes? According to interpretations by California state courts, interpretations which federal courts must respect, the arms prohibited by § 22210 are not commonly owned for lawful purposes.

Used for Home Defense:
Page 28, line 3…

Heller held that the core of the Second Amendment right is to preserve the right of law-abiding citizens to defend hearth and home. 554 U.S. at 635; see also Kachalsky v. Cty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“Second Amendment guarantees are at their zenith within the home.”). “As we put it, self-defense [is] ‘the central component of the right itself.’” McDonald, 561 U.S. at 787. Were there a preponderance of evidence demonstrating that a policeman’s billy is commonly owned by law abiding citizens for defense of the home, a (newly enacted – not longstanding) statute like § 22210 would run headlong into the Heller test and the statute would be struck down. Cf., Bauer, 858 F.3d at 1222 (quoting Silvester, 843 F.3d at 821) (“A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny.”). That is not the case here. 89 (2d Cir. 2012) (“Second Amendment guarantees are at their zenith within the home.”). “As we put it, self-defense [is] ‘the central component of the right itself.’” McDonald, 561 U.S. at 787. Were there a preponderance of evidence demonstrating that a policeman’s billy is commonly owned by law abiding citizens for defense of the home, a (newly enacted – not longstanding) statute like § 22210 would run headlong into the Heller test and the statute would be struck down. Cf., Bauer, 858 F.3d at 1222 (quoting Silvester, 843 F.3d at 821) (“A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny.”). That is not the case here.

Invitations to Appeal?
Page 12, line 7…

2. California Penal Code § 22210 is a 104-Year-Old Longstanding Regulation

One court recently observed that for the courts called upon to define the boundaries of the Second Amendment, “uncharted frontiers remain.” Drummond v. Robinson Township, __ F.4th __, 2021 WL3627106 *1 (3rd Cir. August 17, 2021). This case about whether a prohibition on billy possession qualifies as “longstanding” lies in an area where maps are yet to be drawn. Holloway v. Att’y Gen. United States, 948 F.3d 164, 181 (3d Cir. 2020) (Fisher, CJ., dissenting) (“[N]either courts nor scholars have agreed on the precise contours of this category -- and in particular how ‘longstanding’ a regulation must be.”).

Treading lightly and cutting a first path, given our Circuit’s precedent, this Court holds that the California billy prohibition is a historically approved regulation.

Page 14, line 9…

In trying to “get the history right,” courts rely on the parties to direct the focus to the principal historical sources and appropriate precedents. Young, 992 F.3d at 785-86. In this case, the parties might have been more helpful. Digging into history is the work of historians rather than judges. Consequently, like the court said in Young, “this is a legal opinion, not a dissertation, so we are likely to fall short in some way.” Id.

Page 10, Line 6…

This Court does not read the Second Amendment or Heller to require stopping a constitutional inquiry without further analysis. A presumptively lawful firearm restriction may, upon further analysis, actually be at odds with the Second Amendment.

Why should a longstanding regulation be kept permanently beyond the reach of constitutional review? If judges accept Young’s invitation to uphold firearm restrictions without further analysis, a longstanding firearm restriction may be left stuck in the past, only because it has not been challenged before the present. Indeed, a restriction may not have been challenged in the past because, prior to Heller’s decision in 2008, it was said that an individual lacked Article III standing to assert an individual Second Amendment right.11

Prior to 2008, most judicial thinking about the Second Amendment was incorrect. Lower court opinions did not acknowledge that the Second Amendment conferred an individual right to own firearms, or that the right applied against the states. See e.g., United States v. Hancock, 231 F.3d 557, 565–66 (9th Cir. 2000) (“[T]his court has concluded that ‘the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.’”) (citation omitted).12 Other jurists have questioned the notion of a Second Amendment carve-out for longstanding restrictions and presumptively lawful regulations. See Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 418 (4th Cir. 2021), as amended (July 15, 2021) (“We do not, however, read the word ‘longstanding’ in Heller as a standalone exception to the Second Amendment. . . . Heller’s historical, textual, and structural analysis counsels against creating a freestanding category of laws exempt from Second Amendment scrutiny based solely on how long similar laws have existed.”); see also Kanter v. Barr, 919 F.3d 437, 453–54 (7th Cir. 2019) (Barrett, C.J., dissenting) (“[D]oes ‘presumptively lawful’ mean that such regulations are presumed lawful unless a historical study shows otherwise? Does it mean that as-applied challenges are available? . . . Does the word ‘longstanding’ mean that prohibitions of recent vintage are suspect?”).

[pacrat]

Originally Posted by Dvrjon

Long-standing legal precedent of Western law against spousal abuse and generally, battery, precludes that result.

Of more concern is your basic premise that a husband has an inalienable, God-given Right to physically beat his wife, and that Right shall not be infringed.

Which part of the Constitution contains that?

Just how does your obtuse interpretation of a sarcastic parody analogy. Become a "constitutional premise attributed to myself"?

[BAJ475]

Originally Posted by pacrat

Just how does your obtuse interpretation of a sarcastic parody analogy. Become a "constitutional premise attributed to myself"?

I think that he missed the obvious. As you say, a sarcastic parody analogy.

[press1280]

Originally Posted by Dvrjon

It will help if folks read the entire ruling before commenting. I have.

This isn’t about remedial math.

It’s about long-standing court precedence and history.

The problem I have with this opinion is that we're not talking about public carry of billys, but a total ban on possession. "Longstanding" would need to have the context that other courts found (under an individual rights scope) that billys are not protected. Instead the opinion is based on just the law being in existence for an X number of years, and the state court opinions banning PUBLIC CARRY of these weapons. Taking this to the extreme would mean ANY law in existence for a certain period was automatically untouchable. That's just not how things are supposed to work.
Heller didn't say that "longstanding" laws are automatically protected anyway, just merely that they shouldn't be automatically struck down.

[Paladin]

When (and where) do we find out the appeals docket for this case? Link?

[Paladin]

Originally Posted by Paladin

When (and where) do we find out the appeals docket for this case? Link?

Bump

[Dvrjon]

Originally Posted by Paladin

When (and where) do we find out the appeals docket for this case? Link?

https://storage.courtlistener.com/re...44922.43.0.pdf

https://dockets.justia.com/docket/ci...s/ca9/21-56039

Filed: September 23, 2021

Filing 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes.

The schedule is set as follows: Appellants Russell Fouts and Tan Miguel Tolentino Mediation Questionnaire due on 09/30/2021. Appellants Russell Fouts and Tan Miguel Tolentino opening brief due 11/23/2021. Appellee Rob Bonta answering brief due 12/23/2021. Appellant's optional reply brief is due 21 days after service of the answering brief. [12237011] (RT) [Entered: 09/23/2021 10:59 AM]

[Paladin]

Originally Posted by Dvrjon

https://storage.courtlistener.com/re...44922.43.0.pdf

https://dockets.justia.com/docket/ci...s/ca9/21-56039

Thanks!

[Dano2467]

So, the long slow process continues....

[pacrat]

Originally Posted by Dano2467

So, the long slow process continues....

HEY IT'S ONLY

[Paladin]

Originally Posted by pacrat

HEY IT'S ONLY

Opening brief due Nov 23.

[pacrat]

Originally Posted by Paladin

Opening brief due Nov 23.

And here it is:

https://pdfhost.io/v/A3aNVxZ66_Fouts...OYFhUhpEqVZyWk

Forwarded to me by an interested party.

[Spanky8601]

Originally Posted by pacrat

And here it is:

https://pdfhost.io/v/A3aNVxZ66_Fouts...OYFhUhpEqVZyWk

Forwarded to me by an interested party.

I get a 404 error with that link.

[pacrat]

Originally Posted by Spanky8601

I get a 404 error with that link.

Try again, I think I got the link fixed.

https://pdfhost.io/v/A3aNVxZ66_Fouts...OYFhUhpEqVZyWk

[Paladin]

Originally Posted by pacrat

And here it is:

https://pdfhost.io/v/A3aNVxZ66_Fouts...OYFhUhpEqVZyWk

Forwarded to me by an interested party.

Thanks!

Answering brief due Dec 23.

[Foothills]

Page 14, line 9…
Quote:
In trying to “get the history right,” courts rely on the parties to direct the focus to the principal historical sources and appropriate precedents. Young, 992 F.3d at 785-86. In this case, the parties might have been more helpful. Digging into history is the work of historians rather than judges. Consequently, like the court said in Young, “this is a legal opinion, not a dissertation, so we are likely to fall short in some way.” Id.

One thing I will say about the amicus briefs in NYSRPA Is how effectively they documented all the historical discrimination that New York engaged in with its permit process. Tons of documentation. The pro-NY side seemed to rely exclusively on their "longstanding" nature of their process. And they never demonstrated that the "longstanding" process wasn't discriminatory.

There's a longstanding idea that carrying in public is reserved for the aristocracy. That's basically how NY's plan works today, with permits only for the politically favored and the wealthy. Plenty of longstanding practices are discriminatory in effect.

[curtisfong]

Originally Posted by Foothills

Plenty of longstanding practices are discriminatory in effect.

This is why i really don't understand the basis for any "longstanding" defense.

The "woke" crowd, of all people, should be on board with the notion that the more "longstanding" a restriction is, the *more* likely it is discriminatory.

[FirearmFino]

Streamlined request by Appellee Rob Bonta to extend time to file the brief is approved. Streamlined requests allow for a 30 day extension of time to file the brief. Amended briefing schedule: Appellee Rob Bonta answering brief due 01/24/2022. The optional reply brief is due 21 days from the date of service of the answering brief.

[Paladin]

Originally Posted by FirearmFino

Streamlined request by Appellee Rob Bonta to extend time to file the brief is approved. Streamlined requests allow for a 30 day extension of time to file the brief. Amended briefing schedule: Appellee Rob Bonta answering brief due 01/24/2022. The optional reply brief is due 21 days from the date of service of the answering brief.

[pacrat]

Originally Posted by Paladin

https://pdfhost.io/v/xA09bcRVU_Appel...UMwOF6JsYf_7Aw

Argument .................................................. .................................................. . 24 I. Conduct Protected by the Second Amendment ...................... 26 A. Billies Are Longstanding Regulations that Do Not Burden Protected Conduct .................................................. ....... 27 B. Billies Are Not Typically Possessed by Law-Abiding Citizens for Lawful Purposes ......................... 39 II. Assumed to Burden Conduct Protected by the Second Amendment, They Would Be Subject to, and Satisfy, Intermediate Scrutiny .................................................. ............ 47 A. Intermediate Scrutiny Would Apply BecauseBurden the Core Second Amendment Right ................ 48 California's 104 California's Billy Restrictions California's Restrictions on Billies Do Not Burden California's Restrictions on Even If California's Restrictions on Billies Were California's Billy Restrictions Do Not Severely Burden the Core Second Amendment Right

The copied and paste from pdf came out rather wonky. So urge readers to read it themselves from link provided.

ETA ...... Again forwarded by an interested party.

[press1280]

Originally Posted by curtisfong

This is why i really don't understand the basis for any "longstanding" defense.

The "woke" crowd, of all people, should be on board with the notion that the more "longstanding" a restriction is, the *more* likely it is discriminatory.

Not to mention the Sullivan Law (the may issue portion anyway) is roughly the same age as this law, and it appears to be DOA in front of the SCOTUS

[pacrat]

https://pdfhost.io/v/HzH6.CK9L_fouts...KILABBcxlqXyyc

A very well researched bit of work by Misters Beck and Stamboulieh. Hats off Gents.

"LONG STANDING INDEED" ...............


Forwarded by interested party.

[Dano2467]

Originally Posted by pacrat

https://pdfhost.io/v/HzH6.CK9L_fouts...KILABBcxlqXyyc

A very well researched bit of work by Misters Beck and Stamboulieh. Hats off Gents.

"LONG STANDING INDEED" ...............


Forwarded by interested party.

Well, lets hope this works!

[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?