Baird v. Becerra (USDC Eastern District of CA) Open Carry

[Chewy65]

^^ https://www.courtlistener.com/docket...ird-v-becerra/

{Later by Edit} Sorry. That's the District Court, not the the Circuit Court.

[Drivedabizness]

IANAL - but I like it.

[tedw]

There is a consistent pattern by the State of Calif to deny its residents of their constitutional rights.They have turned a constitutional right into a crime. The legislature,the courts,and law enforcement are all guilty as he'll. Their oath tosupport the constitution is meaningless.

[Paladin]

Originally Posted by mcbair

Oral arguments in front of Ninth set for 6/30/23 at 0930 courtroom 1, Federal Courthouse in Pasadena. ?

4 weeks to go!

[tedw]

Originally Posted by mcbair

Oral arguments in front of Ninth set for 6/30/23 at 0930 courtroom 1, Federal Courthouse in Pasadena. This is an interlocutory appeal of the denial of our P.I.
Judge Mueller admitted she failed to examine our likelihood to succeed on the merits of our case., ( the conduct we seek is verbatim from the Second Amendment and thus is presumed to be constitutional).

Judge Muller failed to examine the harm in denial of an enumerated Right.

Judge Mueller failed to include Ninth Circuit precedent that the government cannot suffer harm from being prevented from enforcing unconstitutional acts.

Judge Muller failed to consider the balance of equities always falls to the people when it comes to preserving enumerated rights. The balance of equities cannot fall to the government in denial of those rights. The government cannot use public safety as grounds to deny Second Amendment rights, which are pre-governmental and thus ?Natural Rights?.

This is how the Winters Test is fully and comprehensively integrated into the Bruen test.

The state failed to put forward one single example of bans on open carry which date to the founding era. The judge and the state claim that interest balancing, although insufficient to win during what they refer to as the merits phase of the case are perfectly fine during the preliminary phase of a Second Amendment case and this is why she feels she was not required to examine the first two steps in the Winters test.

Weak logic from a weak judge and a weak States attorney. We will see whether
There is any Justice in what is arguably the worst run state in this nation.

I think you are doing a fine job. Since the facts and the law are on your side and they are unwilling to admit it, I predict you can expect delays and foot dragging for as long as possible. And rulings contrary to law which must be appealed. Californians are truly Sheeple to allow this state of affairs. Resistance to tyranny is obedience to God,

[Paladin]

Originally Posted by mcbair

Oral arguments in front of Ninth set for 6/30/23 at 0930 courtroom 1, Federal Courthouse in Pasadena. This is an interlocutory appeal of the denial of our P.I.

[AlmostHeaven]

This week is somehow when a huge number of Second Amendment lawsuit oral arguments have converged.

Mock v. Garland, the Fifth Circuit case challenging the constitutionality of the pistol brace rule, as well as Harrel v. Raoul, the Seventh Circuit case challenging the Illinois assault weapons ban, both happen on June 29.

[mcbair]

Panel of judges announced for orals on the 29th
Van Dyke, ( Trump appointee), R.N. Smith, (Bush appointee), W Smith, (Bush appointee).
Each side gets 15 minutes. The state is trying for a second bite at the apple. They have introduced “experts”! The state would take a walk down memory lane with its expert college professors who allege that no one was “allowed” to openly carry dirks and daggers. The state’s experts allege that responsible gun regulations were common in the antebellum period although mostly in the south where democrats didn’t want black people to have weapons.
Bans on conduct which align with the verbatim text of the Second Amendment did not exist during the founding era, period, end of sentence! Wren v Georgia, Justice Taney’s comments in the Dred Scott case, Cruikshank v U.S., Heller, McDonald, Caetano, NYSRPA, all confirm this.
California had no such ban for the entirety of its statehood until 1968.
The state has failed utterly to show any historic ban on the open carry of loaded weapons.
The circuit judge intentionally failed to consider at least three of the “Winters test” hurdles and admitted so on the record when she rejected our plea for P.I.
The circuit judge intentionally failed to consider the “Bruen test”. She claims on the record the Bruen test was only germane during the “merits phase” of the proceeding and not during the preliminary phase. Judge Mueler admitting on the record the state was not likely to succeed using public safety and interest balancing during the merits phase but this conduct was perfectly acceptable logic to deny a P.I.
California and its Federal Court lackeys hate the Second Amendment with a passion. They cannot imagine the ordinary citizen having the Liberty to defend themselves without a government permission slip even though we have been doing just that for the vast majority of our state and our nations history.
I am praying for some Judicial integrity from this panel.

[Drivedabizness]

If those judges are wrong on the law - call them out on it.

[AlmostHeaven]

Originally Posted by mcbair

Panel of judges announced for orals on the 29th
Van Dyke, (Trump appointee), R.N. Smith, (Bush appointee), W Smith, (Bush appointee).

This seems like a good panel. We got a lucky draw.

[CitaDeL]

Id love to see this prevail, given Shasta County's lying turncoat Sheriff seems to think that whether he issues a loaded exposed licence is wholly conditioned on the courts determination on open carry.

His violation of state statute by withholding the uniform application or forms betrays his feint, and reveals his contempt for the 2A.

I'll be watching for the outcome.

[CitaDeL]

Id love to see this prevail, given Shasta County's lying turncoat Sheriff seems to think that whether he issues a loaded exposed licence is wholly conditioned on the courts determination on open carry.

His violation of state statute by withholding the uniform application or forms betrays his feint, and reveals his contempt for the 2A.

I'll be watching for the outcome.

[mcbair]

Due to airline and FAA problems my attorney was unable to get her flight to L.A.
My 2A case will now be a zoom argument. Ours is the only case left on the docket for tomorrow. There are more developments that bode well for us but I don’t want to jinx the deal. I’ll give a synopsis after the orals are over.

[ritter]

Originally Posted by mcbair

Due to airline and FAA problems my attorney was unable to get her flight to L.A.
My 2A case will now be a zoom argument. Ours is the only case left on the docket for tomorrow. There are more developments that bode well for us but I don?t want to jinx the deal. I?ll give a synopsis after the orals are over.

Thank you and best of luck tomorrow.

[Chewy65]

McBair, I just saw this and had been planning to make the trip to Pasadena. Is there anyway for an outsider to listen into and view the hearing?

[abinsinia]

Originally Posted by Chewy65

McBair, I just saw this and had been planning to make the trip to Pasadena. Is there anyway for an outsider to listen into and view the hearing?

I think the 9th circuit court of appeals has a youtube channel.

[SpudmanWP]

Here it is:

https://www.youtube.com/@9thCircuit

[Chewy65]

Thanks abinsinia and SpudmanWP, but how does the youtube channels work if orals are don by video?

[ASD1]

Originally Posted by Chewy65

Thanks abinsinia and SpudmanWP, but how does the youtube channels work if orals are don by video?

it's live streamed

and then saved if you want to watch it later

[pbreed]

Where does the attorney need to go to/from.
If its in state or anywhere west of Colorado I'll go get them and fly them to where ever the case is.

Twiin pressurized plane, I'm 60 I've been flying since I was a teen.
This is not an offer for a charter, this is an offer to do this for FREE as I think 2A is important.

DM me is you want me to do this.

[Chewy65]

Thanks. I think I got it figured and am set to live stream at 9:00 a.m.

https://www.youtube.com/@9thCircuit/streams

It will interesting to see what 3 judges appointed by Republican presidents do and whether the 9th drags out the old enbanc war horse.

[mcbair]

Thank you to everyone!
Do we have rights or do we have selective permissions which are elusive and vapid representations of the pre-governmental, unalienable rights our God has given us? John Adams said, “ Liberty must, at all hazard, be protected. You have a right to it derived from our maker. Even were this not true, it was bought and purchased for us by our fathers with their ease, their estates, their blood and their treasure”. I pray Justice is done. Thanks to all who have supported this. We are going for a permanent injunction.

[BAJ475]

Originally Posted by mcbair

Thank you to everyone!
Do we have rights or do we have selective permissions which are elusive and vapid representations of the pre-governmental, unalienable rights our God has given us? John Adams said, ? Liberty must, at all hazard, be protected. You have a right to it derived from our maker. Even were this not true, it was bought and purchased for us by our fathers with their ease, their estates, their blood and their treasure?. I pray Justice is done. Thanks to all who have supported this. We are going for a permanent injunction.

Earlier you posted that arguments in your case were scheduled for 9:30 am but given that your case is the only one to be heard and will be by zoom, is it still 9:30 or will it be moved up to 9:00?

[abinsinia]

It's over now, it must have started at 9am.

Any hot takes ?

[Elgatodeacero]

It was a bit of a mess.

The court was sympathetic to Plaintiffs, and this may result in a preliminary injunction directly from 9th Circuit or an order for district court to reconsider the PI quickly (as in immediately).

I think a decision will be issued faster than normal in this appeal.

Plaintiff’s attorney was not effective in arguing that Bruen foreclosed further historical analysis of the right to open carry.

Plaintiff had a chance to hammer the State on the historical analysis because the State totally failed to produce historical analogues during the prelim injunction hearings, but Plaintiff’s counsel was not particularly effective even though the panel served the issue up on a silver platter.

Overall, the panel is very unhappy with the district court judge and how the case has been handled.

[ritter]

Originally Posted by Elgatodeacero

Overall, the panel is very unhappy with the district court judge and how the case has been handled.

Thanks for the summary. This is at least hopeful.

[curtisfong]

Originally Posted by Elgatodeacero

Plaintiff?s counsel was not particularly effective even though the panel served the issue up on a silver platter.

This sort of mishandling is always extremely disheartening. We discuss things in depth here, but none of it really ever gets represented in court properly.

[Chewy65]

I am with Elgatodeacero. Don't foget that one of the three didn't participate in orals due to a family emergency, but will weigh in at conference.

The two panel members seemed most concerned as to why they should not remand to the DC to consider their ruling as per the ruling of the CA. Why the AG should not be given an opportunity to offer evidence that it now says it has of analogs.

I don't understand why the Appellant didn't just go for the jugular and say that if the state had any they should have brought it up for consideration during the battle over the PI.

I think the Court's concern was that it had the right to rule on the merits and if that would be error if the AG was not afforded a right to offer the historic evidence it now says it has.

Why did P's attorney not argue the State shoud have inluded that in its arguments if they had it.

The panel was concerned with how Plaintiff's decision on their 2A rights has been delayed for so long.

I am far from being a knowledgeable appellate or con law attorney, but that was my take.

[BAJ475]

Originally Posted by abinsinia

It's over now, it must have started at 9am.

Any hot takes ?

Yes, it appears that they will remand to the district court to reconsider all of the preliminary injunction factors in Winter v. Natural Resources Defense Council, Inc, 555 U.S. 7 (2008), which, to the panel, it appeared the trial court had not done. The state also claimed that they are near or close to being able to provide historical analogs supporting bans on open carry. So we and Mr. Baird need to expect more BS from the AG.

IMHO plaintiff's counsel should have done a better job reading the judges on the panel. To me, it was clear that they aree going to reverse and remand, so the issue was if that was going to include a temporary injunction. IMHO plaintiff's counsel should have focused on the irreparable harm that is inherent in constitutional violations, with emphasis on the amount of time Mr. Baird has already had his rights denied. And, as a second point, the state's failure to provide any historical analog, given the clear need to do so to prevail on the merits prong. Instead of arguing that the state cannot do so, an argument that went nowhere, I think it might have been better to argue that the court should treat the state's failure as an implied admission of the lack of any historical analogs, at least when considering the issue of a temporary injunction while the states scrambles for imaginary analogs.

There was also an interesting dialog where the state agreed with one of the circuit judges that CA is now a "shall issue" state which, of course contradicts the AG's memo that GMC is still a consideration. Mr. Koppel should probably get copies of the AGs fillings in Baird to potentially support the argument that the AG speaks out of both sides of his mouth.

[DolphinFan]

AG Bonta already provided his Historical Timeline, and the only legal law between 1790-1869 was a fire code addressing the storage of black powder at the highest level of the building, so you only blew the roof off, and not the entire building.
The state knows ALL of its arguments fail, that?s why Bonta and Newsom need a 28th amendment to circumvent the 10th Amendment.
The ONLY THING the state can do is slow things down procedurally, they do this with false narratives they know will fail, but it buys them time to keep the unconstitutional laws going.

[BAJ475]

Originally Posted by Chewy65

I am with Elgatodeacero. Don't foget that one of the three didn't participate in orals due to a family emergency, but will weigh in at conference.

The two panel members seemed most concerned as to why they should not remand to the DC to consider their ruling as per the ruling of the CA. Why the AG should not be given an opportunity to offer evidence that it now says it has of analogs.

I don't understand why the Appellant didn't just go for the jugular and say that if the state had any they should have brought it up for consideration during the battle over the PI.

See my post above. In essence, cases should be decided on their merits to at least give some semblance of fairness and due process.

I think the Court's concern was that it had the right to rule on the merits and if that would be error if the AG was not afforded a right to offer the historic evidence it now says it has.

That was also my take.

Why did P's attorney not argue the State should have included that in its arguments if they had it.

Again, see my post below.

The panel was concerned with how Plaintiff's decision on their 2A rights has been delayed for so long.

Yes, and IMHO Plaintiff's counsel should have emphasized this factor.

I am far from being a knowledgeable appellate or con law attorney, but that was my take.

[TruOil]

Originally Posted by Chewy65

I am with Elgatodeacero. Don't foget that one of the three didn't participate in orals due to a family emergency, but will weigh in at conference.

The two panel members seemed most concerned as to why they should not remand to the DC to consider their ruling as per the ruling of the CA. Why the AG should not be given an opportunity to offer evidence that it now says it has of analogs.

I don't understand why the Appellant didn't just go for the jugular and say that if the state had any they should have brought it up for consideration during the battle over the PI.

Remember that this is only at the preliminary injunction stage, and that the State gets a 2nd bite at the apple at the permanent injunction hearing.

[BAJ475]

Originally Posted by DolphinFan

AG Bonta already provided his Historical Timeline, and the only legal law between 1790-1869 was a fire code addressing the storage of black powder at the highest level of the building, so you only blew the roof off, and not the entire building.
The state knows ALL of its arguments fail, that?s why Bonta and Newsom need a 28th amendment to circumvent the 10th Amendment.
The ONLY THING the state can do is slow things down procedurally, they do this with false narratives they know will fail, but it buys them time to keep the unconstitutional laws going.

I understand that they did so in the cases that are in Judge Benitez's court, but did they do so in this case?

[ritter]

Even if this is remanded, it seems it would be very useful to have a CA9 panel telling the District Court that all of Winters and Bruen needs to be applied at the PI level. Seems several lower courts have not done that (here and in Oregon).

[Flight4]

So disappointing to watch, knowing that injunctions are the ONLY opportunity for less-than-decadal progress in the restoration of 2A rights.

Unless there is some miracle by the panel to decide to support a PI, this case will get kicked back for more months/years of legal "process," throughout which enumerated rights will be blocked by unconstitutional laws.

Very weak performance by plaintiff attorney, seemed unprepared, like a deer in the headlights, even agreeing with the panel that the State has not had a fair process and "deserves an opportunity!"

It has been over a year that these laws are PRESUMED unconstitutional with the burden on the State to produce THT, yet the "process" keeps the laws in place.

[Chewy65]

At this point it seems almost certian that this is being remanded. Near the end Vandyke asks Plaintiff's counsel, "why should the state not be given an opportunnity to do that when we remand this case to The District Court."

J. Vandyke may have meand that as a hypothetical if we remand, but I think it tells where he is heading.

[Chewy65]

Originally Posted by TruOil

Remember that this is only at the preliminary injunction stage, and that the State gets a 2nd bite at the apple at the permanent injunction hearing.

Can't the panel enter judgment on the merits if it finds no material dispute; not that it will find none?

[ritter]

Oof. Watched at lunch. That was a rough go by plaintiff's attorney. I'll not judge, who knows what else is going on in her life. Good on their team for getting to where they are.

Either way, a ruling by CA9 that Winters must be adhered to would at least be a procedural win. Maybe we'll get lucky and there'll be a PI attached to the remand until the merits are heard, CA gets a second bite at their (road)apple, fails to find an analogy and wins anyway.

Here's hoping the written appeal request carries substantially more weight than the orals.

[TruOil]

Originally Posted by Chewy65

Can't the panel enter judgment on the merits if it finds no material dispute; not that it will find none?

No.

[CitaDeL]

The video.

https://www.youtube.com/watch?v=Z3nJeZlWEE4