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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1241  
Old 09-15-2020, 6:56 AM
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Originally Posted by Califpatriot View Post
Where are you getting this? Ikuta and Bybee are solid
I don't think they are solid. Ikuta drafted the opinion in Jackson, which upheld SF's hollow point and storage ordinances, and held those laws "neither regulate[d] conduct at the core of the Second Amendment right nor burden[ed] that right severely, so she applied intermediate scrutiny.

Bybee concurred in Pena on the roster requirements except for microstamping, and also agreed that intermediate scrutiny was the correct standard to apply.

It's certainly true that Ikuta signed on to the majority panel opinion in this case, but it's impossible to read the tea leaves as to her specific thinking as to why without having drafted the opinion or a concurrence. While it seems likely she believes there is some Second Amendment right to carry outside the home, her view of the permissible limitations on that right (if any) are unknown. Notably, neither she nor Bybee were on the Peruta en banc panel.

Last edited by LVSox; 09-15-2020 at 7:20 AM..
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  #1242  
Old 09-15-2020, 12:34 PM
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Interesting points, LVsox
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  #1243  
Old 09-15-2020, 12:52 PM
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Originally Posted by kuug View Post
Our only real question here is when the en banc panel overturns the 3 judge panel decision, will SCOTUS take up the case because the 9th circuit has ruled no right to open or concealed carry. The answer to which is no unless Roberts is no longer the swing vote.
The 3 judge panel decision was vacated (null and void) moment en banc was voted for.

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  #1244  
Old 09-15-2020, 4:05 PM
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So, I have some questions:
1) Is the en banc reviewing this de novo? I assume since it was vacated it's like the three panel never happened and that panel was de novo.
2) What precedent does the en banc have to follow and to what extent can they change it? For instance, can they just say "Yeah, we aren't using the two-step anymore. Do this now."
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  #1245  
Old 09-15-2020, 4:49 PM
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Originally Posted by BryMan92 View Post
So, I have some questions:
1) Is the en banc reviewing this de novo? I assume since it was vacated it's like the three panel never happened and that panel was de novo.
2) What precedent does the en banc have to follow and to what extent can they change it? For instance, can they just say "Yeah, we aren't using the two-step anymore. Do this now."
1) The en banc Court is reviewing the district court's ruling on the motion to dismiss de novo. It is not reviewing the panel decision, which as noted, is vacated. So yes, it's like the three-judge panel decision never happened.

2) The en banc Court is only bound by Supreme Court precedent. It can overrule a prior three-judge panel, or even a prior en banc decision, though similar to the Supreme Court's practice of respecting stare decisis, it is generally reluctant to do so.

What could be wild would be if, as is likely, this en banc panel affirms the district court in favor of the county and announces a restrictive rule, and we get a grant and favorable draw in Duncan. That Court *could* reverse whatever standard of review and/or rule of law the Young panel announces. At that point we might see a call for a FULL en banc rehearing before the entire (non-Senior Judge) Court. The procedure exists, but has never been used in the Circuit's history.
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  #1246  
Old 09-15-2020, 6:29 PM
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Default Young v. Hawaii (CA9); EN BANC (Virtual) ORAL ARGS Sep 24 1330

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KC Brown hasn't posted anything. I felt a great disturbance in the Force, as if millions of Democrats suddenly cried out in terror and were suddenly exposed to a risk of some people not being powerless slaves to Big Tech, public workers unions and the racial grievance industry. I fear something great might happen.
Heh. Sorry.

So the deal is that my prediction was with respect to Duncan specifically, and in particular with respect to them doing multiple draws of the panel for the purpose of generating a panel with no dissenters, and the reason for that was to prevent dissenters from stalling the decision until the composition of the Supreme Court changed to one that would almost certainly reverse the en banc panel's decision.

I suppose the same logic could apply here, but all that raises a very relevant question: at what point was the panel for Young drawn? If it was drawn before Kennedy retired, then it's possible it was drawn under circumstances that would not have demanded the kind of panel draw that the current circumstances seem to demand. Of course, that's a pretty weak "defense" since if they can perform multiple panel draws until they get the one they want, they can also re-draw the panel after it has already been selected as long as it hasn't yet been announced. But perhaps the former isn't monitored the way the latter is, such that the latter wouldn't be possible without someone spilling the beans whilst the former might be.

Now, it's clear that the current panel is one that will decide against the right, if only due to the one dissenting Republican (Clifton). It will probably say something like "well, you have a right to carry openly, but carrying openly might frighten the citizenry, which is affray, which means it is subject to 'reasonable restrictions' like being banned everywhere but the deep wilderness, and in any case, the proper standard is intermediate scrutiny and as per Friedman v Highland Park, the mere possibility of making the citizenry less fearful is a strong enough government interest that it justifies banning the exercise of any “non-core” part of the right to arms, and carrying openly isn’t in the home and is thus “non-core”, so the government wins. Have a nice day".

Because it only takes one dissenting vote among the ranks of the Republicans to cause the case to turn against us here, and at least one (Clifton) already has submitted such a vote, and the probability of a Republican nominee siding against us is much much greater than the probability of a Democrat nominee siding for us, it follows that yeah, I have to predict we're going to lose in the en banc decision. The only question is whether or not the Republican nominees who dissent against that en banc decision will hold up the works long enough for Trump to put another 2A-supporter on the Supreme Court. It may be that Sidney Thomas has some way of preventing that, and if he does, then that would affect the panel draw in Duncan as well (because it would relax the necessary criteria quite a lot).
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  #1247  
Old 09-15-2020, 9:09 PM
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Thanks!
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  #1248  
Old 09-15-2020, 10:44 PM
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Originally Posted by kcbrown View Post
Heh. Sorry.

So the deal is that my prediction was with respect to Duncan specifically, and in particular with respect to them doing multiple draws of the panel for the purpose of generating a panel with no dissenters, and the reason for that was to prevent dissenters from stalling the decision until the composition of the Supreme Court changed to one that would almost certainly reverse the en banc panel's decision.

I suppose the same logic could apply here, but all that raises a very relevant question: at what point was the panel for Young drawn?
As I’ve stated many times before, this panel was drawn in February of 2019, on the next court day following the date of the order taking the case en banc, so February 11, 2019 to be precise.

And Chief Judge Thomas is not sitting in his lair, twirling his mustache pulling names until he gets a grouping he likes. The en banc panel drawings are done via the bingo wheel by the Clerk (Molly Dwyer) in San Francisco, in front of at least one Judge, and usually all of the law clerks for each of the judges with an office in the Browning Courthouse. If any other judge would like to watch, he or she is welcome to do so.
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  #1249  
Old 09-16-2020, 1:59 PM
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Originally Posted by LVSox View Post
1) The en banc Court is reviewing the district court's ruling on the motion to dismiss de novo. It is not reviewing the panel decision, which as noted, is vacated. So yes, it's like the three-judge panel decision never happened.

2) The en banc Court is only bound by Supreme Court precedent. It can overrule a prior three-judge panel, or even a prior en banc decision, though similar to the Supreme Court's practice of respecting stare decisis, it is generally reluctant to do so.

What could be wild would be if, as is likely, this en banc panel affirms the district court in favor of the county and announces a restrictive rule, and we get a grant and favorable draw in Duncan. That Court *could* reverse whatever standard of review and/or rule of law the Young panel announces. At that point we might see a call for a FULL en banc rehearing before the entire (non-Senior Judge) Court. The procedure exists, but has never been used in the Circuit's history.
Thanks for the info. Imagine Young goes to full en banc, then Duncan goes to regular en banc, then Duncan goes to full en banc....I wonder if a full en banc has more authority than a regular en banc and hope these plaintiffs are young and spry.
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  #1250  
Old 09-16-2020, 2:49 PM
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Thanks for the info. Imagine Young goes to full en banc, then Duncan goes to regular en banc, then Duncan goes to full en banc....I wonder if a full en banc has more authority than a regular en banc and hope these plaintiffs are young and spry.
How are you coming up with the distinction between a "full en banc" and a "regular en banc"?
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  #1251  
Old 09-16-2020, 3:35 PM
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How are you coming up with the distinction between a "full en banc" and a "regular en banc"?
See LVSox's comment on the original post. To your point, I assumed that a 11-member regular en banc would come before one could ask for a full en banc, but I could be wrong.

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  #1252  
Old 09-16-2020, 4:17 PM
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How are you coming up with the distinction between a "full en banc" and a "regular en banc"?
Ninth Circuit Rule 35-3 and General Order 5.8.


"In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc." 9th Cir. R. 35-3.

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5.8. Rehearing by Full Court

a. Petition by a Party

Upon a timely petition by a party for a rehearing en banc before the full court, the Clerk shall forward a copy thereof to all active judges and any senior judge on the en banc court, and those senior judges who have requested copies. Thereafter, the provisions of this Chapter relating to petitions for rehearing en banc on three-judge panel cases shall apply. (Rev.12/13/10)

b. Sua Sponte Calls

If no petition for rehearing en banc before the full court is filed, any judge may, within 7 days after the date such petition was due, request a vote on whether the case should be reheard by the full court. This request shall be accompanied by a memorandum in support of full court consideration. Thereafter, the provisions of this Chapter relating to petitions for rehearing en banc of three-judge panel cases shall apply.
Gen. Order 5.8

As I mentioned though, no petition for a full court rehearing has been granted since the Ninth Circuit’s limited en banc procedure was enacted in 1980.

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  #1253  
Old 09-16-2020, 4:23 PM
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Originally Posted by BryMan92 View Post
See LVSox's comment on the original post. To your point, I assumed that a 11-member regular en banc would come before one could ask for a full en banc, but I could be wrong.
Copy and thanks. I checked out LVSox's two most recent posts (#1245 and 1248) and didn't see the distinction.

The Ninth Circuit's rules on "en banc" rehearings are kinda weird in relation to the other Circuits. The Ninth holds rehearings using an eleven judge panel. The other Circuit's hold the rehearings using all active, non-recused, judges on the court.

There is nothing in the Ninth Circuit rules that allow a full court re-rehearing of an eleven judge panel rehearing.
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  #1254  
Old 09-16-2020, 4:27 PM
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There is nothing in the Ninth Circuit rules that allow a full court re-rehearing of an eleven judge panel rehearing.
There most certainly is, and I just cited it to you.
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  #1255  
Old 09-16-2020, 4:53 PM
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Originally Posted by LVSox View Post
There most certainly is, and I just cited it to you.
I think that you're mistaken here, at least with regard to FRAP 35 and Circuit Rule 35-3. Please go back and re-read FRAP 35 in conjunction with Circuit Rule 35-3. The process that you seem to think will lead to a full court re-rehearing only leads to a Eleven Judge Panel rehearing. Remember that FRAP 35 applies to all circuits and this includes the "full court" language. Circuit Rule 35-3 amends that to the Eleven Judge panel.

I have to admit to some surprise in reading General Order 5.8. The "Definitions" section of that order very much seems to support your view, but the remainder of the text seems to carry out FRAP 35.
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  #1256  
Old 09-16-2020, 4:57 PM
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I think that you're mistaken here, at least with regard to FRAP 35 and Circuit Rule 35-3. Please go back and re-read FRAP 35 in conjunction with Circuit Rule 35-3.
Do you do this for a living? Because I do. Have you ever argued a case before the Ninth en banc? Because I have. Have you filed a petition for full court rehearing after losing that case 6-5? I did.

Besides the very clear rule, what would prove to you that the procedure exists? Then-Chief Judge Kozinski's testimony before congress describing the procedure? Then-Solicitor General Kagan's petition seeking full court rehearing? The petition that was filed in Peruta? My petition? A photo of the 30-seat courtroom in Pasadena they had built for the purpose?
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  #1257  
Old 09-16-2020, 5:08 PM
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Originally Posted by LVSox View Post
Do you do this for a living? Because I do. Have you ever argued a case before the Ninth en banc? Because I have. Have you filed a petition for full court rehearing after losing that case 6-5? I did.

Besides the very clear rule, what would prove to you that the procedure exists? Then-Chief Judge Kozinski's testimony before congress describing the procedure? Then-Solicitor General Kagan's petition seeking full court rehearing? The petition that was filed in Peruta? My petition? A photo of the 30-seat courtroom in Pasadena they had built for the purpose?
Nope, my experience is in carrying out the decisions of a court. One of my greatest frustrations with the Ninth Circuit was managing a a number of computer forensic cases following their "Flip-Flop-Backflip" manner of decision in the U.S. v Comprehensive Drug Testing (Balco) case (and also noting that Judge Kozinski's involvement in that case proved to be most problematic until corrected).

Rather then "Chest Bumping" on the internet, the best way to advance your position is to cite the rule and explain the application. Rule 35 and 35-3 read very clearly. You've got some great potential to more fully explain General Order 5.8, particularly if it defines a process that has never been used. We'd all benefit from that.
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  #1258  
Old 09-16-2020, 5:13 PM
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Rule 35 and 35-3 read very clearly.
Yes, they do. The full court can rehear a case heard by the limited (11-judge) en banc court, either sua sponte or on petition by a party. It's really pretty simple. I'm not going to bang my head against the wall trying to explain to you why the sky is blue. Ninth Circuit procedures "expressly contemplate the filing of a petition for rehearing en banc before the full court within fourteen days after the filing of an en banc disposition." Berger v. City of Seattle, 580 F.3d 941 (9th Cir. 2009) (citing 9th Cir. Gen. Order 5.8). That's all there is to it.
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  #1259  
Old 09-16-2020, 9:04 PM
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Originally Posted by LVSox View Post
Yes, they do. The full court can rehear a case heard by the limited (11-judge) en banc court, either sua sponte or on petition by a party. It's really pretty simple. I'm not going to bang my head against the wall trying to explain to you why the sky is blue. Ninth Circuit procedures "expressly contemplate the filing of a petition for rehearing en banc before the full court within fourteen days after the filing of an en banc disposition." Berger v. City of Seattle, 580 F.3d 941 (9th Cir. 2009) (citing 9th Cir. Gen. Order 5.8). That's all there is to it.
I've read the order from the Berger v Seattle case that you cited, and I do stand corrected on the point that the Ninth Circuit can conduct a full court re-rehearing of a case under the provisions of its General Order 5.8.

But as to the side discussion about FRAP 35, the Seattle case order seems to make clear that FRAP 35 say nothing about a re-rehearing since all other circuits conduct the rehearing with a full court. Here is the pertinent text quoted from Seattle:

"Indeed, in every circuit but ours, every petition for rehearing en banc is a petition for full court en banc, so the Federal Rules of Appellate Procedure necessarily apply to such petitions. Our General Orders so recognize, as they expressly contemplate the filing of a petition for rehearing en banc before the full court within fourteen days after the filing of an en banc disposition. See 9th Cir. Gen. Order 5.8."

I'll also stand corrected regarding Ninth Circuit Rule 35-3. The final paragraph of that rule is consistent with the General Order.

Having never seen this process occur before, I was quite surprised, and educated, to see that it is possible.
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  #1260  
Old 09-16-2020, 9:42 PM
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Having never seen this process occur before, I was quite surprised, and educated, to see that it is possible.
Which is weird, because among the cases where petitions for full court rehearing after en banc dispositions were filed are both Peruta and the BALCO case to which you referred.

And there was no side discussion about the FRAP except with yourself, since I cited the Ninth Circuit Rules and General Orders from the outset, after you claimed that there was “nothing in the Ninth Circuit rules” allowing full court rehearing.

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  #1261  
Old 09-17-2020, 1:48 PM
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Originally Posted by LVSox View Post
As I’ve stated many times before, this panel was drawn in February of 2019, on the next court day following the date of the order taking the case en banc, so February 11, 2019 to be precise.

And Chief Judge Thomas is not sitting in his lair, twirling his mustache pulling names until he gets a grouping he likes. The en banc panel drawings are done via the bingo wheel by the Clerk (Molly Dwyer) in San Francisco, in front of at least one Judge, and usually all of the law clerks for each of the judges with an office in the Browning Courthouse. If any other judge would like to watch, he or she is welcome to do so.
If that really is the mechanism then my original thinking with respect to how Duncan plays out is incorrect. It means they get whatever they get as far as the panel goes.

But the full court en banc mechanism isn't something I was aware was a possibility. And that means there's yet another level at which the 11 judge en banc panel decision can be reversed, in the event it sides with us.

That mechanism, of course, has never been used. But there's a first time for everything ...
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  #1262  
Old 09-17-2020, 5:51 PM
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Below is a link to an article re the 2nd A and court cases by MSN/SF Chronicle. It mentions an Open Carry federal case in Sac that was dismissed the previous Monday (Aug 30?) I don’t know about that case.

It also refers to Young en banc on the 24th. How’d they know that was the date give this article shows Sept 01 as it’s publication date?

https://www.msn.com/en-us/news/us/co...an/ar-BB18zpP5

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  #1263  
Old 09-17-2020, 6:30 PM
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Below is a link to an article re the 2nd A and court cases by MSN/SF Chronicle. It mentions an Open Carry federal case in Sac that was dismissed the previous Monday (Aug 30?) I don’t know about that case.

It also refers to Young en banc on the 24th. How’d they know that was the date give this article shows Sept 01 as it’s publication date?

https://www.msn.com/en-us/news/us/co...an/ar-BB18zpP5

I think it was known in late Aug. , from the pacer docket,

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08/24/2020 308 Notice of Oral Argument on Thursday, September 24, 2020 - 1:30 P.M. Pacific - Scheduled Location: Courtroom 1 - San Francisco CA.
The hearing time is the local time zone at the scheduled hearing location, even if the argument is fully remote.
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  #1264  
Old 09-17-2020, 6:46 PM
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The case is Baird v Becerra and it has not been dismissed. SF chronically lies about these things.
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Old 09-23-2020, 5:23 PM
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Reminder to tune in and watch the Oral Args at 1:30pm: https://youtu.be/YX71KI_VR14
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  #1266  
Old 09-24-2020, 10:30 AM
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2 hours to go
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Old 09-24-2020, 11:06 AM
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Can someone post a link and/or embed the video for those who can’t watch the livestream?
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Old 09-24-2020, 11:33 AM
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Can someone post a link and/or embed the video for those who can’t watch the livestream?
Not sure if this will contain the recorded video later or not, I think it will though

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Old 09-24-2020, 12:38 PM
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Who else is watching?
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Old 09-24-2020, 12:40 PM
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I am! Counsel for plaintiff sounds like he has a stuffy nose.


...and we have our first "You're still muted" admonition by one judge to another.
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Old 09-24-2020, 12:45 PM
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What a mess, this Zoom thing is terrible.
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What we have in practice is a legal system, not a justice system.
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Old 09-24-2020, 12:46 PM
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why can't we get better attorney's for these important hearings. My kids speak better than the plaintiffs attorney. Every other word is um
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Old 09-24-2020, 12:47 PM
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Originally Posted by Davidwhitewolf View Post
I am! Counsel for plaintiff sounds like he has a stuffy nose.


...and we have our first "You're still muted" admonition by one judge to another.
He is stammering all over the place.

Now we are discussing Heller, and he is getting stuck in the defense inside vs outside the home paradigm.
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Old 09-24-2020, 12:50 PM
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Plaintiff’s counsel doesn’t have a voice for radio, but he is doing just fine.
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Old 09-24-2020, 12:51 PM
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how about the judge saying she doesn't understand history and does not understand why SCOTUS makes them look at history. Classic
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Old 09-24-2020, 12:52 PM
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Wow. "Your Honor, I will do my best to answer your question, but I don't know what the term 'equipoise' means."
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Old 09-24-2020, 12:52 PM
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Originally Posted by NorthBay Shooter View Post
how about the judge saying she doesn't understand history and does not understand why SCOTUS makes them look at history. Classic
That was truly cringeworthy
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Old 09-24-2020, 12:56 PM
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Originally Posted by Davidwhitewolf View Post
Wow. "Your Honor, I will do my best to answer your question, but I don't know what the term 'equipoise' means."
After Bybee had already told him, five minutes earlier
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What we have in practice is a legal system, not a justice system.
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Old 09-24-2020, 12:58 PM
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this is now a good cause argument. He is getting wrapped up in circles
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Old 09-24-2020, 12:58 PM
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Yeah enough with the ums. I do think he is using it as a place holder while he thinks about he is saying.
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