NAGR v. San Jose [2/16 MOTION to Dismiss Plaintiffs' Complaint, see post #72]

[Silence Dogood]

National Association for Gun Rights, Inc. v. City Of San Jose
Northern District of California
Judge: Beth Labson Freeman
5:22-cv-00501


CourtListener Page - NAGR Case Page - NAGR 07/14/22 update

Video Update:
https://youtu.be/xelDsx5pn7Y


// 03-16-23 OPPOSITION/RESPONSE (re 95 MOTION to Dismiss Plaintiffs' Consolidated Second Amended Complaint Under Rules 12(b) and 12(b)(6) ) filed byNational Association for Gun Rights, Inc., Mark Sikes. (Dhillon, Harmeet) (Filed on 3/16/2023) (Entered: 03/16/2023) (see post #82)
// 03-16-23 OPPOSITION/RESPONSE (re 95 MOTION to Dismiss Plaintiffs' Consolidated Second Amended Complaint Under Rules 12(b) and 12(b)(6) ) HJTA's Opposition to City's Motion to Dismiss Plaintiffs' Complaint filed (see post #81)
// 03-01-23 ORDER GRANTING 100 STIPULATION RE MOTION TO DISMISS BRIEFING AND CASE MANAGEMENT SCHEDULING ORDER AS MODIFIED BY THE COURT. (see post #80)
// 02-28-23 STIPULATION WITH PROPOSED ORDER to extend time to respond to motion to dismiss, to vacate dates and to set a case management conference filed by National Association for Gun Rights, Inc., Mark Sikes, City of San Jose, Howard Jarvis Taxpayers Association. (see post #79)
// 02-16-23 MOTION to Dismiss Plaintiffs' Consolidated Second Amended Complaint (see post #72)
// 02-02-23 AMENDED COMPLAINT CONSOLIDATED SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY JUDGMENT, INVALIDATION OF §§ 10.32.215 AND 10.32.230(B) OF CHAPTER 10.32 OF TITLE 10 OF THE SAN JOSE MUNICIPAL CODE, AND NOMINAL DAMAGES (see post #70)
// 02-01-23 MOTION DENIED (see post #66)
// 01-27-23 ADMINISTRATIVE MOTION Extension of Time to File Amended Complaint Supporting Declaration, and [Proposed] Order to Extend Time for Filing Amended Complaint
// 01-10-23 MOTION to Remand filed (see post #63)
// 01-06-23 STATUS REPORT ON IMPLEMENTATION OF THE GUN HARM REDUCTION ORDINANCE by City Of San Jose, City of San Jose City Council, Jennifer Maguire. (Prevost, Tamarah) (Filed on 1/6/2023) (Entered: 01/06/2023) (see post #61)
// 09-30-22 Motion to dismiss partially granted/partially denied (see post #47)
// 08-16-22 City SJ Submits Status Report (see post #32)
// 08-03-22 Preliminary injunction denied.

[aileron]

I'm sorry not a lawyer, but does this actually put the NFA in jeopardy if this goes to the SC? Have they thought this through?

I mean they are basically trying to pull the same stunt of its just a tax. Which is a burden on a right. As an analogue - Because you speak in forums you must pay an annual tax for others bad/offensive/illegal speech and also pay this tax to educate the masses on improper/illegal/offensive speech.

If the SC was to strike this down... wouldn't that expose the NFA to the same/similar problem? I mean an undue burden of the right once established in this case?

[BAJ475]

Originally Posted by aileron

I'm sorry not a lawyer, but does this actually put the NFA in jeopardy if this goes to the SC? Have they thought this through?

I mean they are basically trying to pull the same stunt of its just a tax. Which is a burden on a right. As an analogue - Because you speak in forums you must pay an annual tax for others bad/offensive/illegal speech and also pay this tax to educate the masses on improper/illegal/offensive speech.

If the SC was to strike this down... wouldn't that expose the NFA to the same/similar problem? I mean an undue burden of the right once established in this case?

IMHO the NFA is already exposed to an attack on this basis. See the Hoover vs ATF thread.

[nedro]

They should tax the 19th amendment.

[Silence Dogood]

I am most interested in seeing how the other side reacts to cases like this one that cite Bruen.

Additionally, what happens when judges accept weak anti-gun arguments in spite of recent precedent. The judge assigned to this case was an Obama appointee.

Plaintiffs have until 28JUL2022 to “respond to the substantive points in Brady’s amicus brief”.
https://www.courtlistener.com/docket...y-of-san-jose/

[curtisfong]

I think all these plaintiffs need to do a better job forum shopping.

[Lanejsl]

https://storage.courtlistener.com/re...91018.72.0.pdf

[Robotron2k84]

How much of losing the PI is due to the implementation date being pushed out to December or next year?

[JDoe]

Originally Posted by Lanejsl

https://storage.courtlistener.com/re...91018.72.0.pdf

This allows an appeal on up towards SCOTUS, yes?


#Democracy is 2 wolves and a lamb voting on what to have for dinner.
#Let’s go Brandon!
#FJB

[SkyHawk]

Originally Posted by Robotron2k84

How much of losing the PI is due to the implementation date being pushed out to December or next year?

Part of it was ripeness (the fee) but part of it (insurance) was due to the court thinking that text and history supports insurance for gun ownership and the plaintiffs are not likely to prevail. Hopefully they find out the hard way that is BS

[abinsinia]

The judge doesn't seem to understand what "history and tradition" means.

The Judge says this,

... the Ordinance prospectively would permit the impoundment of any non-compliant person’s firearm ...

Then later the Judges says,

In and of itself, a fee that is merely associated with owning a
firearm—and for which the failure to pay does not result in that ownership being revoked ..

So your gun can get impounded but it doesn't revoke your ownership.

[Roswell Saucer]

Mark Smith called it when NYSRPA came down that laws like this would be defended using surety statues from a billion years ago. Typical Democrat nonsense.

[Librarian]

Originally Posted by JDoe

This allows an appeal on up towards SCOTUS, yes?

Many steps yet before SCOTUS - this is the trial court, so a trial must happen before anything is around to start an appeals process.

[abinsinia]

The judge is suggesting the insurance requirement is close enough to the surety laws mentioned in Breun.

The judge ignored the fact that surety laws only applied to people who were identified as negligent.

The judge claimed the new "core" of the right is "self-defense" and so it doesn't matter that surety laws only applied to a small set of people, because both insurance and surety laws applied the same to the "core" of the right.

I'm adding "core" because that were it looks like it's going.

[Roswell Saucer]

Originally Posted by abinsinia

The judge is suggesting the insurance requirement is close enough to the surety laws mentioned in Breun.

The judge ignored the fact that surety laws only applied to people who were identified as negligent.

The judge claimed the new "core" of the right is "self-defense" and so it doesn't matter that surety laws only applied to a small set of people, because both insurance and surety laws applied the same to the "core" of the right.

I'm adding "core" because that were it looks like it's going.

Next time SCOTUS issues a 2A opinion it should be 100 pages of copy/paste "SHALL NOT BE INFRINGED" because it seems that's the only way to get through the thick skulls of inferior court judges what the 2A means.

[Robotron2k84]

Originally Posted by JDoe

This allows an appeal on up towards SCOTUS, yes?

Originally Posted by Librarian

Many steps yet before SCOTUS - this is the trial court, so a trial must happen before anything is around to start an appeals process.

An interlocutory appeal of the PI ruling is what JDoe is referring to? Or just that this is a Federal civil rights case that can be appealed to SCOTUS, later? An interlocutory appeal of the PI ruling would have to go to the Ninth, first, but is appealable up to SCOTUS.

To satisfy an appeal for the PI, plaintiffs would still need to prove all the qualifications for the injunction, which includes a sustained claim of immediate and irreparable harm.

Unfortunately, as I see it, there is no immediate and irreparable harm if the date for the fee is still in the future. San Jose has even hinted that implementation of the statute may wait for DC judgement before going into effect, so hard to see what relief a PI has in this case, at trial.

I’m not taking San Jose’s side, here. It’s clear that pushing out the implementation date is deliberate to counter plaintiff’s injunction request.

.

[mshill]

I don't know but using Surety Laws as an analogue seems to have been addressed on pages 48-49 of NYSRPA v Bruen. Me thinks someone forgot to read the decision.

All told, therefore, “[u]nder surety laws everyone started out with robust carrying rights” and only those reasonably accused were required to show a special need in order to avoid posting a bond. Ibid. These antebellum special-need requirements “did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless.” Ibid.

One Court of Appeals has nonetheless remarked that these surety laws were “a severe constraint on anyone thinking of carrying a weapon in public.” Young, 992 F. 3d, at 820.

[BAJ475]

Originally Posted by SkyHawk

Part of it was ripeness (the fee) but part of it (insurance) was due to the court thinking that text and history supports insurance for gun ownership and the plaintiffs are not likely to prevail. Hopefully they find out the hard way that is BS

YES.

[Robotron2k84]

Originally Posted by abinsinia

The judge is suggesting the insurance requirement is close enough to the surety laws mentioned in Breun.

The judge ignored the fact that surety laws only applied to people who were identified as negligent.

The judge claimed the new "core" of the right is "self-defense" and so it doesn't matter that surety laws only applied to a small set of people, because both insurance and surety laws applied the same to the "core" of the right.

I'm adding "core" because that were it looks like it's going.

As I pointed out in the Does v. Bonta thread, via Bonta’s reply to NYSRPA v. Bruen supplementary authority, they still want to cling to the “two-step” by making the first step an identification of if the text of the amendment covers the activity, and if so, only then move on to history and tradition.

This is, of course, wrong per the decision in NYSRPA, in that the text presumptively covers the activity in its plain meaning, but even if it doesn’t, history and tradition can be used to show that the activity is rooted in American life up to the reconstruction, and doesn’t necessarily need to be just “keep” or “bear.”

More dishonesty from the activist courts, but this is how they’ll keep the two-step alive. If SCOTUS wishes to stop this, a shadow-docket appeal will need to be filed on one of these 2A issues where the new two-step is attempted.

[abinsinia]

Originally Posted by Robotron2k84

As I pointed out in the Does v. Bonta thread, via Bonta’s reply to NYSRPA v. Bruen supplementary authority, they still want to cling to the “two-step” by making the first step an identification of if the text of the amendment covers the activity, and if so, only then move on to history and tradition.

This is, of course, wrong per the decision in NYSRPA, in that the text presumptively covers the activity in its plain meaning, but even if it doesn’t, history and tradition can be used to show that the activity is rooted in American life up to the reconstruction, and doesn’t necessarily need to be just “keep” or “bear.”

More dishonesty from the activist courts, but this is how they’ll keep the two-step alive. If SCOTUS wishes to stop this, a shadow-docket appeal will need to be filed on one of these 2A issues where the new two-step is attempted.

Yeah, you can see the lineage of this in the this order. I read the below and I thought it was over and plaintiff wins , but alas there are more steps,

Having defined the conduct at issue as “owning or possessing a firearm without firearm
liability insurance,” the Court finds that Plaintiffs are likely to prevail on a finding that this
conduct is covered by the plain text of the Second Amendment.

In this judges world the plain text doesn't matter. After this the judges pulls the rug out with surety nonsense.

[kuug]

Originally Posted by SkyHawk

Part of it was ripeness (the fee) but part of it (insurance) was due to the court thinking that text and history supports insurance for gun ownership and the plaintiffs are not likely to prevail. Hopefully they find out the hard way that is BS

The judge will find out hopefully. Surety laws, the historical analog she used, was only used in a handful of states, and only available to citizens who were accused of a violent crime. The fact it was only in a few states, and the fact they only affected accused individuals, leads me to believe the judge did not actually read Bruen with good faith. We are about to find out the hard way that lower courts will abuse Bruen the same way they abused Heller’s historical analysis. The justices must be vigilant and aggressive, or we are screwed


Sent from my iPhone using Tapatalk

[abinsinia]

Originally Posted by kuug

The judge will find out hopefully. Surety laws, the historical analog she used, was only used in a handful of states, and only available to citizens who were accused of a violent crime. The fact it was only in a few states, and the fact they only affected accused individuals, leads me to believe the judge did not actually read Bruen with good faith. We are about to find out the hard way that lower courts will abuse Bruen the same way they abused Heller’s historical analysis. The justices must be vigilant and aggressive, or we are screwed

The judge read it, but it was creative reading. The judge claimed the law doesn't need to be a dead-ringer, and claimed the Bruen test only allows evaluating how Surety laws effected "self-defense".

The judge claimed it doesn't matter that it only applied to a small number of people.

[IVC]

Frustrating, but this is just a PI and it looks like the plaintiff wasn't sure about the argument they were making, the fees are not known at this time and the ripeness is in question due to the law not being in effect and the fees not being known. Too many loose ends for my taste and too much missing in the complaint.

Look at the analysis of surety statues. The argument should be not that they penalized those who were reckless, but that there was no fee of any kind for vast majority of people. Then, surety statues were not widely accepted, they were outliers. And, surety statues were about "bear," not "keep." Finally, what surety statues evolved into in the 19th century doesn't matter because it is wrong century for historical analysis. All of this is something that plaintiffs should've addressed if they were aiming for a PI.

As it stands, plaintiffs still get to do it right in the court, but they'll have to address all these issues they hadn't and which resulted in the denied PI.

To be clear, I see the judge's ruling as "activist" because I'm pretty sure she wouldn't let an "additional medical insurance for gay people just because they are gay" stand, but to fight in radically changed legal environment we can't be sloppy and expect the judges to do our work.

[IVC]

Originally Posted by abinsinia

The judge claimed it doesn't matter that it only applied to a small number of people.

The judge addressed the issue of different people having different financial consequences based on their risk profile and matched it to how insurance works, where premium is risk-based.

It was our sides' duty to prevent this reasoning by distinguishing "bear" from "keep," by reiterating not only that the fee was individualized, but that regular people never had to pay anything, by showing that it was an outlier, etc.

Well, we get a do-over during the full trial, but we don't get the PI. Lesson learned (hopefully).

[abinsinia]

Originally Posted by IVC

The judge addressed the issue of different people having different financial consequences based on their risk profile and matched it to how insurance works, where premium is risk-based.

It was our sides' duty to prevent this reasoning by distinguishing "bear" from "keep," by reiterating not only that the fee was individualized, but that regular people never had to pay anything, by showing that it was an outlier, etc.

Well, we get a do-over during the full trial, but we don't get the PI. Lesson learned (hopefully).

NAGR did do this, at least partly. The judge claimed it didn't matter if regular people didn't do it. The Judges claimed Breun analysis didn't take that into account.

Plaintiffs argue that surety laws are distinguishable because these laws imposed a financial burden only after “cause has been shown specific to the individual.” Pls.’ Suppl. Br. 4 (emphasis in original). The Insurance Requirement, they argue, would assume “every person is a danger” and apply to all San Jose gun owners, regardless of whether they have shown themselves to be high-risk. Pls.’ Suppl. Br. 4-5. This is certainly a fair distinction between surety laws and the Insurance Requirement but ultimately one that does not bear upon the metrics identified in Bruen.

Maybe NARG didn't hit this enough, but it seems they did enough to get the judge the address it.

[SkyHawk]

Originally Posted by IVC

The judge addressed the issue of different people having different financial consequences based on their risk profile and matched it to how insurance works, where premium is risk-based.

Yeah, so now it is up to an underwriter to determine if we can afford to excercise our 2A rights. Complete and total BS.

[abinsinia]

If you don't pay they impound your gun.
An impounded gun can't be kept and you can't bear it.

[green grunt]

^ so they pull your info from "another list" ... and come for your personal property....not good at all :0

[Lanejsl]

Originally Posted by abinsinia

If you don't pay they impound your gun.
An impounded gun can't be kept and you can't bear it.

But who takes it? LE? Will LE enforce?

[FreemanG]

Originally Posted by Lanejsl

But who takes it? LE? Will LE enforce?

Depends on who you are and what county you reside in as always

[IVC]

Originally Posted by SkyHawk

Yeah, so now it is up to an underwriter to determine if we can afford to excercise our 2A rights. Complete and total BS.

Agreed, but that's the reasoning she used and that's the reasoning that should've been addressed in the complaint.

[abinsinia]

Status report

https://storage.courtlistener.com/re...91018.77.0.pdf

[abinsinia]

Is a $25 fee de minimus ?

[SharedShots]

Originally Posted by SkyHawk

Yeah, so now it is up to an underwriter to determine if we can afford to excercise our 2A rights. Complete and total BS.

People seem to readily accept one person deciding if you can carry a gun (CCW)so this is just extending it to everyone in San Jose - so far.

That is how it works, start slow, get people used to something that doesn't affect everyone and then build out from there.

When will the few realize they sold out the many? By jumping through hoops just to get theirs, they set the stage. How's it all working out?

Pretty soon it will come down to a DGC (department of gun control) modeled after the DMV where you go to get your gun buying license, register the ones you buy, show proof of insurance and then have a clerk print out your papers. Guess who does that now for practical purposes and gloat they are better than everyone else because they're "licensed"?

[abinsinia]

It appears there is a "financial hardship exemption". I was thinking the $25 could be a lot for someone of little means, but if they exempt those people then that maybe isn't relevant .

[Foothills]

Originally Posted by SharedShots

Pretty soon it will come down to a DGC (department of gun control) modeled after the DMV where you go to get your gun buying license, register the ones you buy, show proof of insurance and then have a clerk print out your papers. Guess who does that now for practical purposes and gloat they are better than everyone else because they're "licensed"?

Are you referring to Canada or New Jersey?

[abinsinia]

In this video he talks about taxes on civil rights. There is one case which is mentioned where Virginia had a $1.50 poll tax which was challenged in 1966.

I suspect Virginia thought a $1.50 was small enough to be O.K. The $1.50 in 2022 dollars is $13.

If San Jose is telling gun owners to pay $25 that's almost double a poll tax which was already stricken down as too much.

[rplaw]

Originally Posted by Roswell Saucer

Next time SCOTUS issues a 2A opinion it should be 100 pages of copy/paste "SHALL NOT BE INFRINGED" because it seems that's the only way to get through the thick skulls of inferior court judges what the 2A means.

They'll just ignore it because someone will say that somewhere the grammar is bad and it violates the style manual because of the unnecessary repetition. Thus, the opinion can be ignored as unintelligible.

[Librarian]

Originally Posted by SharedShots

Pretty soon it will come down to a DGC (department of gun control) modeled after the DMV where you go to get your gun buying license, register the ones you buy, show proof of insurance and then have a clerk print out your papers. Guess who does that now for practical purposes and gloat they are better than everyone else because they're "licensed"?

And like DMVs, they'll have to test competence, which will require a shooting range and a rangemaster or two at each location. And, can't let that stand idle, so it'll have to be open nights and weekends, too.

[Foothills]

Originally Posted by Foothills

Are you referring to Canada or New Jersey?

Since I posted this comment, I did the Real ID application. With an appointment, and pre-approved documents, I was in and out of the DMV in 8 minutes.

Imagine a PPT/DROS, which uses the same documents, being completed that fast.