2022 08 01 Boland V Bonta - Handgun Roster : Appeal to 9th 3-27

[abinsinia]

Originally Posted by JiuJitsu

I’d have to read their amended complaint again but I thought that it went after the entire roster. I thought it was just this preliminary injunction that was only going after these specific parts of the UHA to maximize the likelihood of getting it approved. Of course I may be wrong.

And yea, I’d rather see the whole UHA trashed as the blatant infringement that it truly is.

Yeah, just the PI is limited. They stated this fact in the response brief.

[JiuJitsu]

I actually think the plaintiffs have a pretty decent chance at getting a PI. Their brief has solid arguments for all the items that the judge intends to discuss at the next court date for this motion. And I thought the state’s arguments against were flimsy at best.

CA’s arguments were mostly crap like…well the roster doesn’t even implicate the 2A (LOL, wut?) And even if it does there some grandfathered guns still on the roster so it’s all cool, guys. No infringements here. Oh and there are TONS of historical analogs like a late 18th century law restricting large quantities of black powder storage that’s totally equivalent to this. Yea.

[Odd_Ball]

Originally Posted by JiuJitsu

I actually think the plaintiffs have a pretty decent chance at getting a PI. Their brief has solid arguments for all the items that the judge intends to discuss at the next court date for this motion. And I thought the state’s arguments against were flimsy at best.

CA’s arguments were mostly crap like…well the roster doesn’t even implicate the 2A (LOL, wut?) And even if it does there some grandfathered guns still on the roster so it’s all cool, guys. No infringements here. Oh and there are TONS of historical analogs like a late 18th century law restricting large quantities of black powder storage that’s totally equivalent to this. Yea.

Black powder storage laws were brought up in Heller as well. These were a fire safety measure because BP is an explosive and thus the limit on large quantities (and that it be stored upstairs) was to prevent too large of a mushroom cloud once the fire reached the gunpowder.

None of this was a form of "gun control" in the sense of prohibiting people from having or acquiring firearms (either in general or of specific firearms).


From Heller, majority opinion at pg 632:

The other laws Justice Breyer cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 686.

Heller, Justice Breyer dissent at pg 684-685:

Furthermore, several towns and cities (including Philadelphia, New York, and Boston) regulated, for fire-safety reasons, the storage of gunpowder, a necessary component of an operational firearm. See Cornell & DeDino, A Well Regulated Right, 73 Ford. L. Rev. 487, 510–512 (2004).

Heller, Justice Breyer dissent at pg 686 (with citations to founding era (1780s) laws):

The New York City law, which required that gunpowder
in the home be stored in certain sorts of containers, and laws
in certain Pennsylvania towns, which required that gunpowder
be stored on the highest story of the home, could well
have presented similar obstacles to in-home use of firearms.
See Act of Apr. 13, 1784, ch. 28, 1784 N. Y. Laws p. 627;
An Act for Erecting the Town of Carlisle, in the County of
Cumberland, into a Borough, ch. XIV, § XLII, 1782 Pa. Laws
p. 49; An Act for Erecting the Town of Reading, in the
County of Berks, into a Borough, ch. LXXVI, § XLII, 1783
Pa. Laws p. 211. Although it is unclear whether these laws,
like the Boston law, would have prohibited the storage of
gunpowder inside a firearm, they would at the very least
have made it difficult to reload the gun to fire a second shot
unless the homeowner happened to be in the portion of the
house where the extra gunpowder was required to be kept.
See 7 United States Encyclopedia of History 1297 (P. Oehser
ed. 1967) (“Until 1835 all small arms [were] single-shot weapons,
requiring reloading by hand after every shot”).

[Paladin]

Originally Posted by JiuJitsu

I actually think the plaintiffs have a pretty decent chance at getting a PI. Their brief has solid arguments for all the items that the judge intends to discuss at the next court date for this motion. And I thought the state’s arguments against were flimsy at best.

Which MAY get stayed, but WILL get appealed, and MAY get overturned, which MAY ….

[tomandrea]

New to the thread but adding my 2 bits. All in all, the first Orederd requests from the Judge seemed like he was on the same page as the Honorable Justice Thomas in the Bruen case opinion. But that last item:

"The balance of equities, including but not limited to any public safety or other public benefit or interest, for each statutory requirement at issue in this action"

Makes it appear he is still stuck in the 9th Circuit frame of mind where so called public safety trumps individual constitutional rights. After reading his order for the Jan 23rd hearing, I don't have much faith in him to uphold the instructions provided him by Judge Thomas to follow the proper judicial approach to this case and the ROSTER will live on.

[JiuJitsu]

That “balance of equities part” is not something he made up. It is part of the required criteria that must be assessed for preliminary injunctions to be issued, if I’m not mistaken.

Edit: Apparently this language that is getting some people spun up (and I don't like either, by the way) comes from Supreme Court precedent in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Munaf v. Geren, 553 U. S. __, __ (2008) (slip op., at 12); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U. S. 305, 311–312 (1982).

[JiuJitsu]

I also want to add that any assessment of “balance of equities” would now hopefully heavily weigh heavily in favor of “other public benefit or interest” by not restricting the general public’s 2A civil rights to “keep” (i.e. acquire) common arms for self-defense, among other things. Protecting an enumerated constitutional civil right is definitely in everyone’s interest above a state government’s dishonest, outdated, and ever-shrinking list of approved firearms that clearly violates the text, history and tradition test.

[Drivedabizness]

Originally Posted by JiuJitsu

That “balance of equities part” is not something he made up. It is part of the required criteria that must be assessed for preliminary injunctions to be issued, if I’m not mistaken.

Ignoring that interest balancing is forbidden??? Look again

[JiuJitsu]

The test for obtaining a PI may vary slightly across jurisdictions but generally a plaintiff seeking preliminary injunctive relief must satisfy a four-factor test: (1) that he or she is likely to succeed on the merits of his claims; (2) that he or she is likely to suffer irreparable harm without preliminary relief; (3) the balance of equities between the parties support an injunction; and (4) the injunction is in the public interest.

I did not make up these rules. Nor did the judge.

[Drivedabizness]

Now go read it again. The "rules" may not be applied so wrongly.

Ask the law school that gave you your JD for your money back. Got it?

[JiuJitsu]

Originally Posted by Drivedabizness

Now go read it again. The "rules" may not be applied so wrongly.

Ask the law school that gave you your JD for your money back. Got it?

Oh look, we got a tough guy here. That's cute.

What are you even arguing here? Nobody is saying "interest balancing". The rules of the court apparently come from SCOTUS precedent and seem to require the above to be addressed to get a PI. If you don't like it then go argue with the Federal Courts or scream at the sky if that helps you. I am only sharing the info I found.

And I am not even a lawyer. So your asinine comment at the end was way out of line. "Got it"?

*Edited to fix a minor typo and added a SCOTUS reference if that helps or interests anyone. See my other post above for the case.

[Drivedabizness]

You evidently like to argue for the sake of argument and then get pissy when you get pushback.

Figures.

[JiuJitsu]

Nice projection. But anyway, Happy New Year.

[GetMeCoffee]

Originally Posted by JiuJitsu

...
What are you even arguing here? Nobody is saying "interest balancing". The rules of the court apparently come from SCOTUS precedent and seem to require the above to be addressed to get a PI.
...

Your post makes perfect sense to me. While a court cannot use "interest balancing" as part of the analysis to determine if a gun law is constitutional, they can (and must) consider the "balance of equities" when it comes to issuing a PI. The analysis is sequential; perhaps not fully independent, but the first one is aimed at discerning the constitutional right, while the second is aimed at justification for the extraordinary relief granted by a PI.

[abinsinia]

First EX PARTE APPLICATION for Leave of Witness Dr. Saul Cornell to Appear for Testify via Video Conference or Phone Defendants Ex Parte Application to Permit Witness to Testify by Video or Phone at January 23 2023 Hearing filed by Defendant's Robert Bonta. (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Proposed Order, # 4 Certificate of Service) (Boutin, Gabrielle) (Entered: 01/13/2023)

Saul Cornell should be interesting. Maybe Reno May Will do a video on these people.

[JiuJitsu]

Originally Posted by abinsinia

Saul Cornell should be interesting.

Oh yay. The state will allow a testifying “expert” to bloviate on gun safety and public interest. Because it likely won't be on history and tradition of gun roster laws. And no doubt his "expert testimony" will completely ignore the fact that all these gun roster “safety” rules are not mandated in the rest of the country - or even our own CA LEO’s - yet miraculously all their guns are somehow deemed to be "not unsafe".

And I wonder how the state's arguments that we are "keeping the public safe" from "unsafe" handguns will somehow overpower the fact that they are significantly restricting the entire population of CA of their 2A civil rights to keep and bear arms by effectively banning the purchase all new modern semiautomatic pistols in common use. Talk about "balance of equities", sheesh. Seems to weigh heavily towards an injunction to me, though based on history may be a long shot. We'll see.

[BAJ475]

Originally Posted by JiuJitsu

Oh yay. The state will allow a testifying “expert” to bloviate on gun safety and public interest. Because it likely won't be on history and tradition of gun roster laws. And no doubt his "expert testimony" will completely ignore the fact that all these gun roster “safety” rules are not mandated in the rest of the country - or even our own CA LEO’s - yet miraculously all their guns are somehow deemed to be "not unsafe".

And I wonder how the state's arguments that we are "keeping the public safe" from "unsafe" handguns will somehow overpower the fact that they are significantly restricting the entire population of CA of their 2A civil rights to keep and bear arms by effectively banning the purchase all new modern semiautomatic pistols in common use. Talk about "balance of equities", sheesh. Seems to weigh heavily towards an injunction to me, though based on history may be a long shot. We'll see.

How is what he might say about the rooster and/or gun safety relevant to the issues before the court? One question for him. Is it not true that there is absolutely no historical analogue from the founding era to prohibiting the purchase of handguns based on the lack of a magazine disconnect, a loaded chamber indicator, some form of microstamping or a drop test?

[abinsinia]

ORDER by Judge Cormac J. Carney: Granting 37 Defendant's Ex Parte Application to Permit Witness to Testify by Video or Phone at January 23, 2023 Hearing. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 01/13/2023)

Saul is approved.

[abinsinia]

Saul is a good pro-gun control historian .. I'm sure he can come up with some junk history to make the roster look legal.

[JiuJitsu]

Got legal problems attempting to defend your BS gun control laws?

Better call Saul.

[559nFree]

Originally Posted by rrr70

If, and it’s a big IF, manufacturers want to pay ransom to the state.

So if these items are removed from the UHA we still would have to wait for the new models to be added to the roster? That's odd manufacturers decide to pay the ransom. Why didn't they only go after these specific items?

Sent from my SM-S901U using Tapatalk

[abinsinia]

Originally Posted by 559nFree

So if these items are removed from the UHA we still would have to wait for the new models to be added to the roster? That's odd manufacturers decide to pay the ransom. Why didn't they only go after these specific items?

I think they limited the PI because they wanted to make it easier to get it approved. The Renna case requested to enjoin all the roster laws so we have two chances to get part or all enjoined. Renna and Boland are neck and neck in the process.

[JiuJitsu]

My opinion is that even if this PI only partially enjoins the handgun roster, it would be enough that a good number of manufacturers would quickly jump at the chance to get their newest products submitted for drop testing and placed on the roster. Sure it may take a few months or more, but why would they not jump at this? I mean, can you imagine the pent up customer demand in this state for modern pistols? There are huge amounts of money to be made for the industry, especially in the shorter term.

[559nFree]

Originally Posted by JiuJitsu

My opinion is that even if this PI only partially enjoins the handgun roster, it would be enough that a good number of manufacturers would quickly jump at the chance to get their newest products submitted for drop testing and placed on the roster. Sure it may take a few months or more, but why would they not jump at this? I mean, can you imagine the pent up customer demand in this state for modern pistols? There are huge amounts of money to be made for the industry, especially in the shorter term.

I would agree that there is huge money to be made. However, who is in charge of the CA DOJ? The state can drag out adding anything to the list. I'm skeptical but hopeful for Renna next month.

Sent from my SM-S901U using Tapatalk

[abinsinia]

EX PARTE APPLICATION to Permit Remote Testimony of Plaintiffs' Witnesses Stephen Helsley, Salam Fatohi and Clayton Cramer at January 23rd Hearing on Plaintiffs' Motion for Preliminary Injunction filed by Plaintiffs Lance Boland, California Rifle & Pistol Association, Incorporated, Reno May, Mario Santellan, Jerome Schammel. (Attachments: # 1 Memorandum of Points & Authorities, # 2 Declaration of Sean A. Brady, # 3 Proposed Order) (Brady, Sean) (Entered: 01/18/2023)

Remote testimony ..

ORDER by Judge Cormac J. Carney: Granting 40 EX PARTE APPLICATION to Allow Stephen Helsley, Salam Fatohi, and Clayton Cramer to Appear and Testify Remotely. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 01/18/2023)

Approved.

[bwiese]

Originally Posted by abinsinia

If this PI is granted it just eliminates part of the roster, it would
not be open season to buy what you want. It just means new roster entries could be
added without LCI, MD, or microstamping.

And that makes it a big first step, because now all (nonAW/nonSBS) pistols would
be eligible to be sold at retail in CA - and if design changes, retest/re-Roster. The
Roster then just reverts to its "drop test" requirement. Not great... but useful first
step.

The DOJ BoF stance that a 'manufacturing change' makes a gun a 'new gun' magnifies
the loss of guns to microstamping. If there were no microstamping requirement, this'd
at best be a re-drop-test/refile for mfgrs.

The issue will be discontinued guns where mfgr doesn't wanna pay for N years of Rostering
for NLIP (no-longer-in-production) guns, possibly competing with their newer models.
I do note that Smith & Wesson in the 2000-2010 was quite good in keeping quite a few
older models that were out of production but "in the system" (like police recycles) still
on the Roster.

Originally Posted by rrr70

If, and it’s a big IF, manufacturers want to pay ransom to the state.

Um, no. Most mfgrs of any volume did Roster their handguns when they could (sure,
some ultra-small mfgrs didn't).

California is the largest gun market - bigger than combined total of many western states.
These mfgrs also can also avoid selling guns at ultra discount prices, esp with a population
who has at least some more disposable income.

The cost of Rostering a handgun - even if they have to update due to midstream production
change - is worth the sales, unless it's just a poorly-selling gun in the first place.

The idea that major & even 2nd tier gun companies won't Roster guns in CA due to Roster
costs is just silly.

In fact it might even make sense for the Big 5 gun companies and key large distributors to
coinvest in/sponsor a compliance test lab.

[bwiese]

Originally Posted by JiuJitsu

My opinion is that even if this PI only partially enjoins the handgun roster, it would be enough that a good number of manufacturers would quickly jump at the chance to get their newest products submitted for drop testing and placed on the roster. Sure it may take a few months or more, but why would they not jump at this? I mean, can you imagine the pent up customer demand in this state for modern pistols? There are huge amounts of money to be made for the industry, especially in the shorter term.

Absolutely. You might get some small holdouts, but the bigger ones had
the processes in place already - S&W, Ruger, Sig, Glock, H&K, Beretta,
Springfield, etc.

They'll also be smart enough now to not do random small parts changes
unless they really have to - as this will have a re-filing cost.

[CCWFacts]

Originally Posted by bwiese

The idea that major & even 2nd tier gun companies won't Roster guns in CA due to Roster
costs is just silly.

This. Come on, the cost of drop testing is probably < $5k, which they should recoup in sales of < 100 units. Any second tier or above manufacturer is going to do this.

I assume that the primary reason Glock is keeping Gen 3 in production is for California sales. I would guess they would finally get to close their Gen 3 production if they can roster their Gen 4 and 5 models.

I'm looking forward to a Gen 5 Glock!!

[bwiese]

Originally Posted by CCWFacts

This. Come on, the cost of drop testing
is probably < $5k, which they should recoup in sales of < 100 units.
Any second tier or above manufacturer is going to do this.

Excluding staff labor of filings/paperwork, etc. I think the test and fees for
a given model is around $3K - but that was several years ago. It does
not count the raw value of the submitted exemplar(s).

I assume that the primary reason Glock is keeping Gen 3
in production is for California sales. I would guess they would finally
get to close their Gen 3 production if they can roster their Gen 4 and
5 models.

Yup. This also proves the CA market alone is quite viable.

And btw if CA required LCI and even manual safety, Glock would provide it
(those variations already exist for departmental and foreign requirements).

I'm looking forward to a Gen 5 Glock!!

I got a Gen4 G23 and G41 just to Exercise My Rights via SSE back in Ye Good Ole Daze
(well before 2014, prob 2011ish [Got rid of G23 because 40cal and later got Gen3
G19.]

[flhxxx]

Gen 5 Glocks feel substantially better in hand and the triggers are better than Gen 3 Glocks. If the roster drops I will add another G45 and a G43X to the safe. I'd also like a Staccato CS and another P320. Already informed the wife that the spend is coming the minute that the roster comes down.

[CCWFacts]

Originally Posted by bwiese

Yup. This also proves the CA market alone is quite viable.

From my searching around, it seems like the California market is the ONLY reason Glock keeps Gen 3 going. This gives a hint about how significant the California market is, and it's probably also causing quite a few other major manufacturers to keep production lines going long after they should have been reconfigured for their current models. It would collectively save them a lot of money to not have to keep these guns, and their parts supplies and logistics, going.

For the drop test, yeah the major manufacturers could definitely fund their own testing lab and all use it. They could use that as a marketing thing and have a more comprehensive quality / safety / reliability test, sort of like UL or Snell, that would be a superset of California's testing. I would actually like some testing lab that would ensure a certain number of rounds between failures.

[f80vm]

Wasn’t there a hearing this morning on the motion for preliminary injunction?

[GetMeCoffee]

Originally Posted by f80vm

Wasn’t there a hearing this morning on the motion for preliminary injunction?

Kostas Moros mentioned it in a tweet earlier today. Maybe he'll have an update later?

https://twitter.com/MorosKostas/stat...619980291?s=20

[f80vm]

Update from Kostas: https://twitter.com/moroskostas/stat...pIIdQvFuaW5lAg

Boland update-

We're going til 6pm tonight (maybe later) to finish up expert witness testimony, likely back tomorrow morning for substantive arguments.

Way longer than I thought this would go.

Judge has asked few questions so no predictions yet.

[Section 101]

May go to tomorrow.

https://twitter.com/MorosKostas/stat...Dryy9Oqs4mnkmQ

[abinsinia]

MINUTES OF Evidentiary Hearing on Plaintiffs' Motion for A Preliminary Injunction held before Judge Cormac J. Carney 23 : Case called and counsel state their appearance. The evidentiary hearing is held. Witnesses called, sworn, and testified. Exhibits identified and admitted. For the reasons stated on the record, the Court continues this matter to January 24, 2023, at 9:00 a.m. Court Reporter: Suzanne McKennon. (twdb) (Entered: 01/24/2023)

I think this is the filing , backdated, they used to continue the hearing into this morning.

[f80vm]

More delays: https://mobile.twitter.com/moroskost...uoz1Q5XflbYtng

Judge wants supp. briefing before ruling.

First brief due late february, replies do early march. 20 pages on first brief, 10 pages on responses.

He seems very inclined to kill microstamping, but is on the fence about the other two.

Looks like more interest balancing by the judge.

[Lord оf War]

It's hard to read the whole topic, sorry. Do I understand correctly that we will find out the result (the court decision whether the CA roster will be canceled) in early-mid March? Thank you.

[abinsinia]

Originally Posted by f80vm

More delays: https://mobile.twitter.com/moroskost...uoz1Q5XflbYtng



Looks like more interest balancing by the judge.

Why interest balancing ?

[JiuJitsu]

Originally Posted by f80vm

More delays: https://mobile.twitter.com/moroskost...uoz1Q5XflbYtng



Looks like more interest balancing by the judge.

So is the judge asking for supplemental briefs to rule on the preliminary injunction or just going to fast track the entire case and rule on it in expedited timeframe?