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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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  #561  
Old 09-18-2023, 8:23 AM
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Mark Smith is right on when he calls Baird "Huge." This is like "Killer" as in Jerry Lee. Great Balls Of Fire and it came from the Ninth!
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  #562  
Old 09-18-2023, 9:08 AM
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Originally Posted by Chewy65 View Post
Mark Smith is right on when he calls Baird "Huge." This is like "Killer" as in Jerry Lee. Great Balls Of Fire and it came from the Ninth!
I agree. The things this remand clarified and hammered home were the exact things certain anti-2A judges were intentionally abusing since Bruen. Or were about to abuse if given any chance (looking at you Renna/Boland PI panel). Maybe they will do it anyway, who knows. But intentional abuse of the 2A and injunctions like they used to get away with gets harder and harder for them. Its about damn time.

Last edited by JiuJitsu; 09-18-2023 at 9:13 AM..
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  #563  
Old 09-18-2023, 10:32 AM
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Was this "motions panel" as opposed to a regular "appeals panel" and does that affect the impact of the rulinging. Can an en bank hearing be petititoned or called for?
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  #564  
Old 09-18-2023, 11:09 AM
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Originally Posted by mcbair View Post
Go to YouTube and watch Professor Mark Smiths commentary on our case.
His channel is ?The Four Boxes Diner?. The title of the video is Great news for 2A
Very enlightening and it is a perfect illustration of the fight we have endured for the last four years in the Circuit court. This judge and all the rest of them know exactly what they are doing when they steal your Liberty. Thank God for this panel in the Ninth. They just made it harder for judges to get away with this type of mis behavior.
I did watch this video, and it is illuminating and hopeful for an eventual positive outcome. However, I still worry about the basic premise that because this 3 judge panel set straight the criteria in which to determine a case for injunction and also other cases (not just this one), what is to say that another 3 judge panel or en-banc will honor, or not honor that criteria set forth?

In other words, deviate back to their old trickery?
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  #565  
Old 09-18-2023, 11:16 AM
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Originally Posted by Rickybillegas View Post
I did watch this video, and it is illuminating and hopeful for an eventual positive outcome. However, I still worry about the basic premise that because this 3 judge panel set straight the criteria in which to determine a case for injunction and also other cases (not just this one), what is to say that another 3 judge panel or en-banc will honor, or not honor that criteria set forth?

In other words, deviate back to their old trickery?

By policy, a decision by a three judge panel is, absent being overturned by an en banc panel, binding on the entire circuit. As applied here, the decision would apply as to the manner in which these cases are to be analyzed until the Court en banc says otherwise. That doesn't mean that a subsequent panel will not try to distinguish that case or find a way around it to at least give it lip service, but that may be difficult to accomplish in the near term.
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  #566  
Old 09-18-2023, 1:22 PM
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Originally Posted by TruOil View Post
By policy, a decision by a three judge panel is, absent being overturned by an en banc panel, binding on the entire circuit. As applied here, the decision would apply as to the manner in which these cases are to be analyzed until the Court en banc says otherwise. That doesn't mean that a subsequent panel will not try to distinguish that case or find a way around it to at least give it lip service, but that may be difficult to accomplish in the near term.
This was my interpretation based on some research as well, but I am far from a lawyer.

The thing that is cool about this setting PI guidance precedent for the 2A is that it is only forcing the correct analysis based on case law. Nothing more. So if some cranky anti-2A judge or three doesn?t like it, fine. But it IS legit and backed by SCOTUS and other case law. So weaseling out of it or going en banc is much less likely.
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  #567  
Old 09-18-2023, 8:05 PM
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My assessment as well, if it makes it to en banc would be out there making it past en banc and ending up at the SCOTUS level would be farther out there, But I wouldn't put it past the defendants to push it that far. But if they did and the defendants lose it would sure make the rest of the anti Second Amendment states hate California. I wonder if gel-head ever curses BRUEN for pushing the CCW issue clear up to SCOTUS and losing.
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  #568  
Old 09-18-2023, 11:00 PM
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My assessment as well, if it makes it to en banc would be out there making it past en banc and ending up at the SCOTUS level would be farther out there, But I wouldn't put it past the defendants to push it that far. But if they did and the defendants lose it would sure make the rest of the anti Second Amendment states hate California. I wonder if gel-head ever curses BRUEN for pushing the CCW issue clear up to SCOTUS and losing.
After the Second Circuit ruled against New York State Rifle & Pistol Association, the gun rights organization appealed the case up to the Supreme Court. Superintendent of New York State Police Kevin P. Bruen had no choice in the matter.
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  #569  
Old 09-19-2023, 9:34 AM
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After the Second Circuit ruled against New York State Rifle & Pistol Association, the gun rights organization appealed the case up to the Supreme Court. Superintendent of New York State Police Kevin P. Bruen had no choice in the matter.
They could have granted the petitioners Nash and Koch unrestricted concealed carry licenses after the victory in the 2nd Circuit. Perhaps, might have mooted the case.
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  #570  
Old 09-19-2023, 11:47 AM
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Originally Posted by TruOil View Post
By policy, a decision by a three judge panel is, absent being overturned by an en banc panel, binding on the entire circuit. As applied here, the decision would apply as to the manner in which these cases are to be analyzed until the Court en banc says otherwise. That doesn't mean that a subsequent panel will not try to distinguish that case or find a way around it to at least give it lip service, but that may be difficult to accomplish in the near term.
By that measure, May v.s Bonta should be a big win in our favor, but you never know until you know.

At the least it slants things our way big time.
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  #571  
Old 09-19-2023, 5:00 PM
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Originally Posted by LonghornBob View Post
They could have granted the petitioners Nash and Koch unrestricted concealed carry licenses after the victory in the 2nd Circuit. Perhaps, might have mooted the case.
If New York State Police had granted the petitioners unrestricted licenses, more people would have filed suit seeking the same treatment, and the may-issue permitting scheme would have come crashing down. Thus, I never expected any outcome other than litigating all the way to the Supreme Court.
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  #572  
Old 09-20-2023, 3:26 PM
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Washington Gun Law video today, starting at 2:40 he is talking about Baird and says En Banc has been denied and flashes the court order.


https://youtu.be/VR54up_Vwc8?si=v0DZa8uLNQx8iWzx
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  #573  
Old 09-20-2023, 4:15 PM
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Originally Posted by Sgt Raven View Post
Washington Gun Law video today, starting at 2:40 he is talking about Baird and says En Banc has been denied and flashes the court order.
Holy S---!

Is constitutional carry coming??
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  #574  
Old 09-20-2023, 4:27 PM
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I think WGL was referring to Nichols regarding En Banc.
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  #575  
Old 09-20-2023, 4:35 PM
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I think WGL was referring to Nichols regarding En Banc.

IDK. I paused the video and the case # he showed is Baird, but I can't find the En Banc denial for it.

No. 23-15016
D.C. No. 2:19-cv-00617-KJM-AC
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  #576  
Old 09-20-2023, 5:16 PM
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IDK. I paused the video and the case # he showed is Baird, but I can't find the En Banc denial for it.

No. 23-15016
D.C. No. 2:19-cv-00617-KJM-AC
It was the opinion from the three judge panel. Baird has no en banc request for a basis of denial ..

I checked pacer, up up to the second, and there is no request for en banc or denial.
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  #577  
Old 09-20-2023, 5:18 PM
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The Baird three judge panel decision only came out 13 days ago. Hard to see how any decision on en banc could have been made. I haven't even seen any evidence that en banc or reconsideration was requested.
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  #578  
Old 09-20-2023, 5:35 PM
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Originally Posted by abinsinia View Post
It was the opinion from the three judge panel. Baird has no en banc request for a basis of denial ..

I checked pacer, up up to the second, and there is no request for en banc or denial.

It's not the first time someone confused all the different cases.


On one video, WGL was confused about Miller & said Miller had been GVR'd by SCOTUS. In another video, Mark W Smith said the VA Tech shooter used LCMs when he used 10 round mags. It doesn't help that the Anti's spread lies all the time & it makes the MSM news.
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  #579  
Old 09-20-2023, 5:49 PM
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It's not the first time someone confused all the different cases.


On one video, WGL was confused about Miller & said Miller had been GVR'd by SCOTUS. In another video, Mark W Smith said the VA Tech shooter used LCMs when he used 10 round mags. It doesn't help that the Anti's spread lies all the time & it makes the MSM news.
Yeah, there's always errors like this in various videos about cases.
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  #580  
Old 09-20-2023, 6:00 PM
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Originally Posted by Sgt Raven View Post
Washington Gun Law video today, starting at 2:40 he is talking about Baird and says En Banc has been denied and flashes the court order.
Case name confusion aside, is this development not excellent news regardless? If the Ninth Circuit has denied en banc in Nichols v. Newsom, gun rights organizations get to avoid an entire year of wasted resources and a guaranteed unfavorable ruling from the appeals court, and directly request certiorari from the Supreme Court.
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  #581  
Old 09-21-2023, 8:33 AM
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Case name confusion aside, is this development not excellent news regardless? If the Ninth Circuit has denied en banc in Nichols v. Newsom, gun rights organizations get to avoid an entire year of wasted resources and a guaranteed unfavorable ruling from the appeals court, and directly request certiorari from the Supreme Court.
The SCOTUS will not hear his case. The best Nichols can hope for is a GVR like Caetano.
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  #582  
Old 09-21-2023, 8:39 AM
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I also have wondered how Baird could have had en banc denied, since I can find nothing about even a petition or sua sponte call. Does it make any difference that the panel was a "motion" panel?
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  #583  
Old 09-21-2023, 10:22 AM
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I also have wondered how Baird could have had en banc denied, since I can find nothing about even a petition or sua sponte call. Does it make any difference that the panel was a "motion" panel?
It was a motion panel since this was an appeal of an interim ruling on the denial of the msj, and that ruling was reversed with directions to reconsider the decision made. There can still be an appeal from the final judgment heard by a regular appellate panel.
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Old 09-21-2023, 2:00 PM
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The SCOTUS will not hear his case. The best Nichols can hope for is a GVR like Caetano.
One can indeed dream of a per curiam decision like Caetano. I think that would be a pretty wonderful outcome.
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  #585  
Old 09-21-2023, 5:11 PM
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It was a motion panel since this was an appeal of an interim ruling on the denial of the msj, and that ruling was reversed with directions to reconsider the decision made. There can still be an appeal from the final judgment heard by a regular appellate panel.
The question was not if a final judgment can be appealed to a panel. The question was if the ruling of a motion panel can be appealed by a petition for rehearing or a hearing en banc. The grant of a petition for rehearing or hearing en banc would vacate the recent opinion of the 9th Circuit. An eventual appeal of a final decision to an appellate panel would not vacate the recent motion panel decision, though it could create a split in the circuit if it found contrary to the holding in Baird v. Bonta. To do so that new panel would have to ignore the panel decision doctrine, would it not?
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  #586  
Old 09-21-2023, 6:00 PM
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The question was not if a final judgment can be appealed to a panel. (1) The question was if the ruling of a motion panel can be appealed by a petition for rehearing or a hearing en banc. (1a) The grant of a petition for rehearing or hearing en banc would vacate the recent opinion of the 9th Circuit. (1b) An eventual appeal of a final decision to an appellate panel would not vacate the recent motion panel decision, though it could create a split in the circuit if it found contrary to the holding in Baird v. Bonta. (2) To do so that new panel would have to ignore the panel decision doctrine, would it not?
I second this question. It actually presents an interesting inquiry, and I would like to know the answer.
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  #587  
Old 09-21-2023, 11:45 PM
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Rob Romano has reported that California did not file an en banc petition in this case before the deadline yesterday (Thursday).
As I understand it, that leaves the lower court with the requirement to reconsider the Preliminary Injunction under the Winter standard and must either determine different reasoning to maintain denial of PI, or grant some form of PI.

It will be interesting to see what time-frame the district court considers "expeditiously"

https://twitter.com/2Aupdates/status...21554638487756
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  #588  
Old 09-22-2023, 12:15 AM
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IIRC that also sets a precedent for the criteria for PI within the 9th going forward.
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  #589  
Old 09-22-2023, 6:08 AM
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Originally Posted by tenemae View Post
Rob Romano has reported that California did not file an en banc petition in this case before the deadline yesterday (Thursday).
As I understand it, that leaves the lower court with the requirement to reconsider the Preliminary Injunction under the Winter standard and must either determine different reasoning to maintain denial of PI, or grant some form of PI.

It will be interesting to see what time-frame the district court considers "expeditiously"

https://twitter.com/2Aupdates/status...21554638487756
If accurate, that is excellent news.
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  #590  
Old 09-22-2023, 6:11 AM
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Would this clarified standard for PI affect what is currently being written for Renna and Boland?
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Old 09-22-2023, 6:15 AM
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Would this clarified standard for PI affect what is currently being written for Renna and Boland?
Yes. It would affect all the cases in CA9. Hawaii, CA, OR and WA, most notably.
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  #592  
Old 09-22-2023, 7:05 AM
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I second this question. It actually presents an interesting inquiry, and I would like to know the answer.
The answer is no.

It's a decision on a motion not a final decision. Ordinarily you cannot appeal a matter unless it's a final decision, interlocutory appeals being the exception. However, a decision on an interlocutory appeal not going the way you want it to doesn't give you a basis to ask the full appellate roster to weigh in.

You can always challenge the interlocutory decision on appeal later and if it was wrong that will cause the appellate court to set aside the verdict and remand.
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  #593  
Old 09-22-2023, 8:31 AM
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The answer is no.

It's a decision on a motion not a final decision. Ordinarily you cannot appeal a matter unless it's a final decision, interlocutory appeals being the exception. However, a decision on an interlocutory appeal not going the way you want it to doesn't give you a basis to ask the full appellate roster to weigh in.

You can always challenge the interlocutory decision on appeal later and if it was wrong that will cause the appellate court to set aside the verdict and remand.
Good answer and explanation. From now until the decision on Baird's inerlocutory appeal is possibly reversed on an appeal of a final judgment, is it precedental? This assumes it is not limited or over turned by a decision in anothercase by another 9th Circuit panel.
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Old 09-22-2023, 8:55 AM
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Originally Posted by tenemae View Post
Rob Romano has reported that California did not file an en banc petition in this case before the deadline yesterday (Thursday).
As I understand it, that leaves the lower court with the requirement to reconsider the Preliminary Injunction under the Winter standard and must either determine different reasoning to maintain denial of PI, or grant some form of PI.

It will be interesting to see what time-frame the district court considers "expeditiously"

https://twitter.com/2Aupdates/status...21554638487756
i
I am not certain, but believe there is still time for a sua sponted call. Ninth Circuit general order allows one to be made, where no petition is made for a hearing en banc, for 7 days following expration of time for petitioning for a reghearing en banc. G.O. 5.4(c)(3). This coming Thursday is the drop dead date. rplaw seems to know his stuff, but I am not certain that en banc rehearing cannot be requested of a motion panel decision. Yes, interlocutory appeals are not usually permitted, with an exception made for some involving an abuse of discretion. If an IA is proper, it just seems that atimely made rehearing en banc would also be proper.

Last edited by Chewy65; 09-22-2023 at 9:09 AM..
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Old 09-22-2023, 9:34 AM
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Good answer and explanation. From now until the decision on Baird's inerlocutory appeal is possibly reversed on an appeal of a final judgment, is it precedental? This assumes it is not limited or over turned by a decision in anothercase by another 9th Circuit panel.
I believe it's published. If so it can be used for precedent. Not that it's all that wonderful as such since it's practicality is going to be limited to the multi-step process for determining if a Preliminary Injunction is warranted in a 2A case.
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  #596  
Old 09-22-2023, 9:44 AM
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I believe it's published. If so it can be used for precedent. Not that it's all that wonderful as such since it's practicality is going to be limited to the multi-step process for determining if a Preliminary Injunction is warranted in a 2A case.
Unlike California state law cases, Federal court decisions may be cited in federal court cases whether they are published or not.
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Old 09-22-2023, 9:57 AM
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I am not certain, but believe there is still time for a sua sponted call. Ninth Circuit general order allows one to be made, where no petition is made for a hearing en banc, for 7 days following expration of time for petitioning for a reghearing en banc. G.O. 5.4(c)(3). This coming Thursday is the drop dead date. rplaw seems to know his stuff, but I am not certain that en banc rehearing cannot be requested of a motion panel decision. Yes, interlocutory appeals are not usually permitted, with an exception made for some involving an abuse of discretion. If an IA is proper, it just seems that atimely made rehearing en banc would also be proper.
An en banc review isn't warranted for an interlocutory appeal.

At least in my opinion. I mean think about what you'd be asking the appeals court to do; decide an issue regarding a minor aspect of a case which isn't finished yet. That would waste the court's time/resources for basically nothing.

And that's even if the en banc panel could hear it. An IA appeal isn't an "appeal from a final decision" and asking for an en banc review of a non-final decision without having an appellate panel decision in there at all kind of screws up the procedural order of things.

Which may be part of the reason IA appeals are so disfavored except in extreme circumstances like what Baird faced.
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  #598  
Old 09-22-2023, 5:00 PM
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Originally Posted by rplaw View Post
The answer is no.

It's a decision on a motion not a final decision. Ordinarily you cannot appeal a matter unless it's a final decision, interlocutory appeals being the exception. However, a decision on an interlocutory appeal not going the way you want it to doesn't give you a basis to ask the full appellate roster to weigh in.

You can always challenge the interlocutory decision on appeal later and if it was wrong that will cause the appellate court to set aside the verdict and remand.
Thank you for the explanation.
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