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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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  #1  
Old 08-15-2019, 4:15 PM
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Default Miller v. Bonta, SDCA - "assault weapons"

Miller v. Bonta
Southern District of California
Judge: Roger Benitez
3:19-cv-01537




SAN DIEGO (AUGUST 15, 2019) — Attorneys for three San Diego residents and one San Diego-based advocacy organization filed a federal lawsuit challenging California’s ban on so-called “assault weapons”. A copy of the complaint can be viewed or downloaded at www.firearmspolicy.org/legal.

“This District Court already ruled the state’s prohibition on the possession of large-capacity magazines is unconstitutional, and enjoined and prohibited enforcement of those provisions of the Code that would have prohibited their possession,” the plaintiffs say in their complaint. “Both implicit and explicit in this District Court’s ruling was the ability to use such magazines if otherwise lawfully possessed” in legally-possessed firearms. “Thus,” it goes on, “the prohibitions that attach to the possession and use of a certain legislatively-invented class of otherwise commonly used, constitutionally protected” firearms “are likewise invalid and should be stricken.”

“This is a straight-forward case to protect our clients' constitutional rights and property,” explained attorney John Dillon. “The State of California’s ban on these firearms will fail constitutional scrutiny for the same reasons that its ban on firearm magazines did.”

“The government cannot ban the constitutionally-protected firearms at issue in this case,” said attorney George M. Lee. “We look forward to proving that the State’s statutes, policies, and practices at issue in this case are both unconstitutional and irrational.”

The case is supported by Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), Second Amendment Foundation (SAF), and the California Gun Rights Foundation (CGF).

District Court:

8/15/19: Complaint

9/27/19: Amended Complaint

6/4/2021: Decision

Quote:
Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.
6/4/21: Judgment

6/10/21: Notice of appeal

Circuit Court:

6/10/21: Motion to stay judgment pending appeal

6/11/21: Preliminary Opposition to Motion to Stay

6/15/21: Opposition to Motion to Stay

6/15/21: Brief of Arizona and 21 Other States in Support of Opposition to Emergency Motion Stay Judgment Pending Appeal

6/16/21: Reply in Support of Emergency Motion to Stay Judgment Pending Appeal

6/21/21: Order Granting Motion to Stay Judgment Pending Appeal

6/30/22: Motion to Lift Stay

7/11/22: Opposition to Motion to Lift Stay and Motion to Vacate and Remand for Further Proceedings

7/18/22: Plaintiffs-Appellees’ Reply to Defendants-Appellants’ Opposition to Lift Stay

7/21/22: Appellees’ Opposition to Appellants’ Motion to Vacate and Remand for Further Proceedings

7/28/22: Defendants-Appellants’ Reply to Plaintiffs-appellees’ Opposition to Motion to Vacate and Remand for Further Proceedings

8/1/22: Order Vacating Opinion and Remanding Case

District Court:

8/29/22: Defendants’ Brief in Response to the Court’s Order of August 8, 2022

8/29/22: Plaintiffs’ Brief Re New York State Rifle & Pistol Ass’n v. Bruen

10/13/22: Plaintiffs’ Additional Brief Re New York State Rifle & Pistol Ass’n v. Bruen

10/13/22: Defendants’ Supplemental Brief in Response to the Court’s Order of August 29, 2022

10/28/22: Plaintiffs’ Response to Defendants’ Supplemental Brief Re New York State Rifle & Pistol Ass’n v. Bruen

10/28/22: Defendants’ Response to Plaintiffs’ Additional Brief Re New York State Rifle & Pistol Ass’n v. Bruen


Last edited by FirearmFino; 10-31-2022 at 8:13 PM..
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  #2  
Old 08-15-2019, 4:21 PM
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Old 08-15-2019, 4:38 PM
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Tracking
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  #4  
Old 08-15-2019, 5:42 PM
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Default San Diego County Gun Owners Challenge CA Assault Weapons Law.

Attorneys John Dillon and George Lee represent three San Diego residents and San Diego County Gun Owners which is led by Michael A. Schwartz. They filed a federal lawsuit challenging California’s ban on assault weapons today. Linked to is the complaint.

Please consider donating to and/or joining San Diego County Gun Owners today. A link to their membership page is here
https://sandiegocountygunowners.com/...wzzMusSNLqh12c

Here is a copy of the complaint.

https://www.scribd.com/document/4220...s-2a-Complaint
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Last edited by wolfwood; 08-15-2019 at 5:49 PM..
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Old 08-15-2019, 7:21 PM
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Good luck!
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Old 08-15-2019, 9:42 PM
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Good angle, probably won't make it at the 9th, but should make it to Supreme Court.
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Old 08-16-2019, 6:54 AM
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I like the tactic, hopefully we can slowly unravel the rest.
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Old 08-16-2019, 8:24 AM
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Whenever a crack emerges we need to ram it full of legal challenges. Hopefully we get a good judge on this one!
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Old 08-16-2019, 9:27 AM
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Why has no one gone after them on the grounds that the supposed logic behind the ban on "assault weapons" is not based on any empirical facts? There is zero bonafide evidence to support the presumption that the weapons covered are any more lethal or dangerous than any other rifle available that is lacking the so called evil features?
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Old 08-16-2019, 9:54 AM
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if anyone ever took a look at any of the studies done they would find they are seriously flawed and written in a manner to prove the point the author or whoever is paying for it wants. I spent years shooting down state surveys and facts in the health field because nothing was honest especially in HIV. No survey done in california or stats in this state should ever be taken at face value if the state uses it to try and support a stance.
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Old 08-16-2019, 1:36 PM
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Quote:
Originally Posted by A-J View Post
Why has no one gone after them on the grounds that the supposed logic behind the ban on "assault weapons" is not based on any empirical facts? There is zero bonafide evidence to support the presumption that the weapons covered are any more lethal or dangerous than any other rifle available that is lacking the so called evil features?
Because logic has nothing to do with intentions and the Law. Look at the decision handed down by the judge in the Highland Park AWB case for a prime example of emotions and a complete lack of reason.
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Old 08-16-2019, 2:14 PM
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Judge John Houston has been assigned to this case.
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Old 08-16-2019, 2:20 PM
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Originally Posted by A-J View Post
Why has no one gone after them on the grounds that the supposed logic behind the ban on "assault weapons" is not based on any empirical facts? There is zero bonafide evidence to support the presumption that the weapons covered are any more lethal or dangerous than any other rifle available that is lacking the so called evil features?
Because the "facts" are determined during Legislative hearings. They will accept "facts" that support their predetermined vote in favor of restrictions and ignore and/or denigrate the facts showing they are full of crap. And as you probably know, the democratic controlled Legislature in California and will pass laws, such as the CCW on campus ban, without any facts whatsoever of any issues with licensed carriers on school campuses.
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Old 08-16-2019, 2:50 PM
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Quote:
Originally Posted by FirearmFino View Post
Judge John Houston has been assigned to this case.
Appointed by Bush, any track record for us to use?
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Old 08-16-2019, 3:48 PM
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Originally Posted by FirearmFino View Post
Judge John Houston has been assigned to this case.
Dang. Don't know anything about the judge, but filing in San Diego seems like we were hoping to get Benitez again.
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Old 08-16-2019, 3:55 PM
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Originally Posted by stix213 View Post
Dang. Don't know anything about the judge, but filing in San Diego seems like we were hoping to get Benitez again.
Because this case is similar to Duncan v Becerra, the plaintiffs may submit a motion to reassign the case to Benitez. However, the current judge will have to approve it.
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Old 08-16-2019, 6:07 PM
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The court will hold plaintiff's request for injunctive relief and strike down the penal code definition of an AW that holds (capacity to accept) more than 10 rounds - thereby allowing plaintiffs use of their LCM in their non-AWs.

Of note is the MD case if given cert. and Duncan v. Bec. case...
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Old 08-16-2019, 6:51 PM
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Originally Posted by FirearmFino View Post
Because this case is similar to Duncan v Becerra, the plaintiffs may submit a motion to reassign the case to Benitez. However, the current judge will have to approve it.
What are the chances of getting this to Benitez? I can't believe anyone would want to hold on to this case in the current news climate. Reading Benitez's ruling in Duncan sounded like he was itching for a 2A case and might be ready to go after assault weapons.
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Old 08-17-2019, 5:18 AM
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Ooooh, the "California Gun Rights Foundation (CGF)"...who is this new kid on the block? I wonder if they have a charismatic leader, a manager of litigation and experienced though unlicensed scholar of the law at the helm. I like how this new organization is "riffing" on the name of the old org. DONATE NOW!!!!!
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Old 08-17-2019, 5:23 AM
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Quote:
Originally Posted by A-J View Post
Why has no one gone after them on the grounds that the supposed logic behind the ban on "assault weapons" is not based on any empirical facts? There is zero bonafide evidence to support the presumption that the weapons covered are any more lethal or dangerous than any other rifle available that is lacking the so called evil features?
Everyone is waiting for you to step up and do it.
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Old 08-17-2019, 7:23 AM
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Quote:
Originally Posted by FirearmFino View Post
“This District Court already ruled the state’s prohibition on the possession of large-capacity magazines is unconstitutional, and enjoined and prohibited enforcement of those provisions of the Code that would have prohibited their possession,” the plaintiffs say in their complaint. “Both implicit and explicit in this District Court’s ruling was the ability to use such magazines if otherwise lawfully possessed”
Duncan is going before the Ninth which means, one way or another, it is getting vacated. They will very likely wait until after NYRPA v NY and try to exploit a loop hole in whatever language SCOTUS writes, and we’ll have to appeal Duncan to SCOTUS.

Given all that has yet to play out, this seems like not good timing to introduce this case. If it ends up in front of a judge or judges during a period of time when Duncan is vacated they get free reign to write more language lauding 10+ magazine bans and it’s an easy ruling in favor of the state that we don’t need more of.
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Old 08-17-2019, 7:50 AM
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I agree with champu. I hope they win, but I’m annoyed with both the timing and the limited scope of the suit. However, Duncan vs. Becerra had a more limited scope and Saint Benitez expanded it. Hopefully the case gets moved to his queue and he finds a way to include all “assault weapons”.
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Old 08-17-2019, 8:27 AM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Ooooh, the "California Gun Rights Foundation (CGF)"...who is this new kid on the block? I wonder if they have a charismatic leader, a manager of litigation and experienced though unlicensed scholar of the law at the helm. I like how this new organization is "riffing" on the name of the old org. DONATE NOW!!!!!
Is there a gun rights org in this entire country that doesn’t ask for money?

I’ll wait for your response. CM?
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Old 08-17-2019, 4:48 PM
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Originally Posted by big red View Post
if anyone ever took a look at any of the studies done they would find they are seriously flawed and written in a manner to prove the point the author or whoever is paying for it wants. I spent years shooting down state surveys and facts in the health field because nothing was honest especially in HIV. No survey done in california or stats in this state should ever be taken at face value if the state uses it to try and support a stance.
Yeah, I remember once looking at the statistics on those without health insurance here in California.

The headline was that it showed a worrisomely high number of Californians without health insurance.

I was able to drill down to the actual data on that one (it took a while) and it was classic lying with statistics.

IIRC the way they determined the percentage of uninsured people in California was:
1. Eliminate everyone who had Medicare.
2. Count as uninsured every single person who had even one day in the calendar year when they were uninsured. They may have had insurance for 364 days but if they didn't have it 365 days of that calendar year they went into the statistics as being "uninsured" for that year.

Then to calculate the number of uninsured people they took that percentage and multiplied it by the total number of people who were considered to be living in California.

So the percentage was cooked and then they put Medicare recipients back into the equation when it came time to calculate the number of uninsured.

It was blatant lying.

I do not doubt that they are playing similar games with just about everything they present to us as facts.

Reporters are generally too stupid to pick up on the lies, are part of the lies, or don't bother doing the research to discover they are lies.
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Old 08-17-2019, 7:54 PM
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Looks like they're trying to have the case moved to Judge Benitez:

Quote:
NOTICE OF RELATED CASE(S) by James Miller, Ryan Peterson, Patrick Russ, San Diego County Gun Owners Political Action Committee of case(s) 17-cv-1017-BEN-JLB . (Dillon, John)
17-cv-1017-BEN-JLB refers to Duncan v Becerra.
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Old 08-17-2019, 8:44 PM
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good luck, we can only hope this catches traction
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Old 08-18-2019, 6:19 AM
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Don’t know how it’s going to work because I haven’t seen high capacity fixed mags on the market the only thing that can change the ruling is if California and the federal government could agree on what makes a assault weapon a assault weapon with out using features that do not change the rate of fire
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Old 08-18-2019, 8:05 AM
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Can I get some clarification? is this going after the whole featureless, 10-round limit, enchilada, or just >10 round mags in the current regime of “must breaks down the action?”
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Old 08-18-2019, 8:28 AM
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Originally Posted by bajajoaquin View Post
Can I get some clarification? is this going after the whole featureless, 10-round limit, enchilada, or just >10 round mags in the current regime of “must breaks down the action?”
They're attempting to address the current situation where it's currently legal to possess and use magazines > 10 rounds except in fixed magazine semi-auto firearms with features. They're trying to get rid of that exception so that the magazines may be used in those specific type of firearms.
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Old 08-18-2019, 8:38 AM
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Got it, thank you.
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Old 08-18-2019, 6:11 PM
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I'm not all that impressed with Benitez. He granted the injunction on his own well researched and thought out decision. Why haven't the folks representing all of us been assertive in getting that injunction overruled?
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Old 08-18-2019, 6:58 PM
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Why haven't the folks representing all of us been assertive in getting that injunction overruled?
That injunction allows us to keep and use our LCMs. What team are you playing for?
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Old 08-18-2019, 7:12 PM
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Originally Posted by yzernie View Post
I'm not all that impressed with Benitez. He granted the injunction on his own well researched and thought out decision. Why haven't the folks representing all of us been assertive in getting that injunction overruled?
I think you mean to say he wrote a stay of his own decision.

And the reason he did that was because if he didn't, the ninth circuit was going to write one that was guaranteed to be less favorable to gun owners. He knew that, and he acted in the favor of gun owners.

And "getting that injunction (sic) overruled" means fighting all the way to the supreme court (after what is guaranteed to be a loss in the ninth) to make Benitez's ruling final, and that effort is slogging through the courts as we type.
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Old 08-19-2019, 8:14 AM
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Originally Posted by tenemae View Post
That injunction allows us to keep and use our LCMs. What team are you playing for?
I'm well aware of that and if you knew anything about me you'd realize how foolish your question is.

Quote:
Originally Posted by champu View Post
I think you mean to say he wrote a stay of his own decision.

And the reason he did that was because if he didn't, the ninth circuit was going to write one that was guaranteed to be less favorable to gun owners. He knew that, and he acted in the favor of gun owners.

And "getting that injunction (sic) overruled" means fighting all the way to the supreme court (after what is guaranteed to be a loss in the ninth) to make Benitez's ruling final, and that effort is slogging through the courts as we type.
You are correct, a terminology mistake on my part. I think he is on our side yet I find it frustrating by the slow moving process(es).
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Old 08-19-2019, 7:56 PM
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FGG,


AWESOME timing, always there to piss on people’s parade! Always good for a laugh! Keep it coming! A2
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Old 08-20-2019, 2:25 PM
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According to FPC, this case has been reassigned to Judge Benitez.
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Old 08-20-2019, 2:29 PM
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Old 08-20-2019, 6:02 PM
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**** ya!
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Old 08-20-2019, 6:23 PM
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Quote:
Originally Posted by moleculo View Post
They're attempting to address the current situation where it's currently legal to possess and use magazines > 10 rounds except in fixed magazine semi-auto firearms with features. They're trying to get rid of that exception so that the magazines may be used in those specific type of firearms.
I bet that is all pretext so they can get an assault weapons case in front of Benitez. Remember, Duncan was just about old magazines losing their grandfathered status. Bentiez took that ball and ran so far as to say all magazine limits are unconstitutional. Reading that opinion suggests he isn't having any of the AW ban. I think the only questions are how far can be go with this case and will we have another freedom week? Will the 10day wait make it impossible to have another freedom week?
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Old 08-20-2019, 7:33 PM
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Originally Posted by Uncivil Engineer View Post
I think the only questions are how far can be go with this case and will we have another freedom week? Will the 10day wait make it impossible to have another freedom week?
You could always buy a few lowers if you’re feeling adventurous.
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