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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 08-14-2020, 11:41 AM
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Default Effect of Today's Opinion in Duncan

THIS POST HAS BEEN UPDATED WITH ADDITIONAL INFORMATION AS OF AUGUST 17, 2020


For the full version of the updated FAQ, click HERE.


On August 14, 2020, a three-judge panel of the Ninth Circuit issued its opinion in the CRPA and NRA supported lawsuit Duncan v. Becerra. This historic decision strikes down California’s statewide prohibitions on magazines capable of holding more than 10 rounds as unconstitutional. In doing so, the Ninth Circuit upheld the 2019 decision from the United States District Court in San Diego that resulted in hundreds of thousands—if not millions—of magazines being lawfully purchased by California gun owners during what has become known as “Freedom Week.”.

Naturally, many gun owners have questions regarding the impact of the most recent ruling in Duncan,and its effects on gun owners and those who want to sell, buy, or possess magazines that can hold over ten rounds. The attached FAQ, which is also linked above, has been prepared to answer many of those questions.
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Old 08-14-2020, 11:47 AM
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Thanks for the clarification!
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Old 08-14-2020, 12:04 PM
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Thank's for the update Matt.
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Old 08-14-2020, 12:24 PM
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My opinion, and worth every penny you paid for it...

At some point, legal eagles will come out with an "official" statement on whether it is ok to purchase LCM's now.

When that opinion comes out, one of two things will happen.

A. - Opinion says "ok to buy" - those who didn't wait for the opinion but "jumped the gun" and ordered immediately, actually receive their orders... everybody else scrambles desperately for the left-over dregs.

B. - Opinion says "not ok to buy" - Guys who ordered early, get their orders cancelled by the seller, everyone else says "see, I told you!"

Which scenario happened last time? A.

Seems like there's nothing to lose and possibly much to gain in assuming A.

Unless you're driving across state lines today and dragging something back that may fit either the A or B scenario... in that case you are taking your chances.
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Old 08-14-2020, 12:34 PM
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A few points:

1. Practically speaking, the risk of prosecution for LCMs has always been extremely low for most law-abiding citizens who do not regularly hang around gangbangers. That risk went down further after freedom week made prosecutions even more difficult, as a poor ADA in Tulare County learned.
2. I believe for an appellate process to be final, the CoA has to issue a "mandate" under Rule 41. Nothing is stopping Benitez from simply vacating his stay before mandate is issued, but the way the stay is currently worded "pending final resolution of the appeal," I think a fair-minded interpretation would be that the stay continues to be in effect as of this moment.
What is mandate? See below
https://samuelslaw.com/wp-content/up...6/03/Doc-6.pdf
Quote:
The Mandate’s Effect on Jurisdictional Matters
Technically, an appellate decision is directed to the lower court from which the appeal arose so
that the court can effectuate the appellate judgment. The mandate, therefore, transfers
jurisdiction to the lower court to take that action. For instance, if a district court’s decision is
affirmed on appeal, the mandate returns the case for entry of judgment to the prevailing party.
The mandate terminates the appellate court’s jurisdiction, and that court cannot be asked for
further relief.
Until the mandate issues, however, the appellate court’s judgment is not final, and that court
retains jurisdiction to decide rehearing petitions or otherwise amend its opinion or judgment.
During this same period before the mandate issues (and, indeed, since the initiation of the
appeal), the district court lacks jurisdiction, except for matters unrelated to the merits of the
appeal or that are merely procedural, such as requests for attorney fees and costs or conferences
to schedule anticipated future proceedings.
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Old 08-14-2020, 12:48 PM
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And the risk of prosecution continues to go down. At some point, state law enforcement will have to completely throw their hands up in the air and say "I give up". It's already close to that anyway.
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Old 08-14-2020, 1:15 PM
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^^^^ Who the hell are you? lol
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Old 08-14-2020, 1:17 PM
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Op works for the firm that represented CRPA in the litigation
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Old 08-14-2020, 1:20 PM
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Can Benitez withdraw his stay and therefore make it all legal again?
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Old 08-14-2020, 1:28 PM
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Quote:
Originally Posted by sonofeugene View Post
Can Benitez withdraw his stay and therefore make it all legal again?
I believe so, not 100 percent sure. The district Court judge retains a limited amount of jurisdiction on appeal.
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Old 08-14-2020, 1:32 PM
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Quote:
Originally Posted by sonofeugene View Post
Can Benitez withdraw his stay and therefore make it all legal again?
That would clear it up.

My non lawyer not worth 2 cents opinion though.... The issue is Benitez wrote his stay the way he wanted it - protecting Freedom Week 1.0 buyers. If Benitez releases his stay now, and the state appeals en banc, the state will seek another stay. If a new stay is issued by the 9th instead of Benitez, it may be worded in a way which harms Freedom Week participants. So Benitez might leave his stay in place until all appeals are done.
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Old 08-14-2020, 1:35 PM
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I don’t see why he couldn’t lift his stay, with a recommendation that if any higher court chooses to go down the road of further appeal, that they reintroduce similar language into their stay thus preventing an effective ex post facto criminal situation for freedom week participants. At this point it’s not like he isn’t aware of what the opinion is of the panel that affirmed his ruling.
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Old 08-14-2020, 1:50 PM
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Generally, the District Court (Benitez) loses jurisdiction over a case once it goes up on appeal. That prevents the district court usually from taking almost any action on the case. The District Court will not regain any jurisdiction over the case until the Mandate issues from the 9th Circuit. That won't happen until all times for filing a petition for rehearing or rehearing en banc expire. The mandate can then issue, if I remember correctly within 7 days after those dates expire. So, to me, the stay by the district court is in force until the mandate issues or an appeal to the supreme court is taken at which time jurisdiction would transfer to the Supreme Court. The 9th Circuit would stay anything from happening while CA decides whether to petition for cert and if filed, the Supreme Court would most likely stay anything from happening while they are considering whether to take the case.
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Old 08-14-2020, 2:17 PM
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Quote:
Originally Posted by gunuser17 View Post
Generally, the District Court (Benitez) loses jurisdiction over a case once it goes up on appeal. That prevents the district court usually from taking almost any action on the case. .
Not quite. See https://www.manatt.com/Manatt/media/...pr-4,-2001.pdf

Especially the last few paragraphs describing the court's authority to modify or clarify orders before issuance of mandate. You might be right or not, but it's not entirely clear
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Old 08-14-2020, 2:21 PM
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Old 08-14-2020, 2:22 PM
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What are the odds that it goes en banc, goes directly to SCOTUS, or ends here?
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Old 08-14-2020, 2:31 PM
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What are the odds that it goes en banc, goes directly to SCOTUS, or ends here?
Nobody has any idea.
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Old 08-14-2020, 2:34 PM
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I would say fairly likely that an appeal to an en-banc hearing will occur. If not by Becerra, then by the 9th itself through sua sponte.

The reasoning for the former is that an en-banc will be comprised of an 11-judge panel that is chosen randomly in addition to the Chief Judge (Clinton-era pick); with there still being a majority of left-leaning judges in the 9th, those are good odds for a better receptive panel for the AG.

The reasoning for the latter is that because there was a split-decision by the first, 3-judge panel, and that there seems to be a large contention that this decision runs counter to the precedents that came before it, not only from other court's decision, but the 9th itself, the circuit will want to review this case to either legitimize the panel's findings or prevent a larger discrepancy.
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Old 08-14-2020, 2:36 PM
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Reading dissent makes my head hurt. And that is what we will get soon enough from the en banc.
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Old 08-14-2020, 2:39 PM
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Reading dissent makes my head hurt. And that is what we will get soon enough from the en banc.
Hopefully, as they say, lightning strikes twice and it is a panel like this one.
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Old 08-14-2020, 2:43 PM
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Originally Posted by Dwight Schrute View Post
Hopefully, as they say, lightning strikes twice and it is a panel like this one.
Assuming that the drawing of judges for the 11-member panel is fair, the probability of picking a sympathetic panel is about 20%
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Old 08-14-2020, 2:48 PM
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I am not an attorney and rely on the legal advice of experts, so it is noteworthy to me that After a review by their legal team, the Compliance Department at Brownell's instructed sales that it is now legal to take orders and ship mags to CA.
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Old 08-14-2020, 2:49 PM
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Quote:
Originally Posted by Bolt_Action View Post
Assuming that the drawing of judges for the 11-member panel is fair, the probability of picking a sympathetic panel is about 20%
So we probably won't get freedom?
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Old 08-14-2020, 2:52 PM
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So we probably won't get freedom?
In the long run, our only good chance is if Trump wins the election and appoints another justice to the Supreme Court.
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Old 08-14-2020, 2:54 PM
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Originally Posted by Bolt_Action View Post
In the long run, our only good chance is if Trump wins the election and appoints another justice to the Supreme Court.
So there is a very good chance!

Trump will win, RBG will die, and one more SC Justice might retire. That would be amazing if King Trump got to appoint two more justices.
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Old 08-14-2020, 2:56 PM
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Originally Posted by SanDiego619 View Post
So there is a very good chance!

Trump will win, RBG will die, and one more SC Justice might retire. That would be amazing if King Trump got to appoint two more justices.
Yes I guess it all depends on what you think the chances are that Trump gets re-elected. Right now the odds seem to be around 40%.
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Old 08-14-2020, 2:57 PM
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Yes I guess it all depends on what you think the chances are that Trump gets re-elected. Right now the odds seem to be around 40%.
40%?? Where are you hearing that? He is going to win by a landslide.

Remember hillary had a 97% chance of winning up until she lost.
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Old 08-14-2020, 3:00 PM
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Originally Posted by RAymond3 View Post
I am not an attorney and rely on the legal advice of experts, so it is noteworthy to me that After a review by their legal team, the Compliance Department at Brownell's instructed sales that it is now legal to take orders and ship mags to CA.
Oner thing to note, however, is that their legal team told them they were okay to sell. Many companies are notifying buyers that any responsibility falls on the individual to abide by their respective jurisdiction's laws. What this means is that from a criminal standpoint, they feel confident against a case against them. The same likely cannot be said for individuals.
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Old 08-14-2020, 3:01 PM
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So technically, it is still not legal to purchase, acquire, convert, or import magazines over 10 rounds? I am really surprised all these companies are shipping if the plain reading of what Michel said is that it is unclear of it is legal.

But imagine going to court for breaking a law that was just ruled to be unconstitutional. That would seem a little silly to try to prosecute someone for that.
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Old 08-14-2020, 3:02 PM
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"You broke the law, you imported a 30 round magazine!"

"But the law was just ruled to be unconstitutional"

"But you broke the law!"
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Old 08-14-2020, 3:12 PM
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Quote:
Originally Posted by SanDiego619 View Post
"You broke the law, you imported a 30 round magazine!"

"But the law was just ruled to be unconstitutional"

"But you broke the law!"
annnnd that's our justice system.
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Old 08-14-2020, 3:39 PM
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Originally Posted by Bolt_Action View Post
Assuming that the drawing of judges for the 11-member panel is fair, the probability of picking a sympathetic panel is about 20%
I think it's more like 29.5 percent. We need 6 of 10 and 13 of 28 of the active judges are Gop appointees.
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Old 08-14-2020, 3:40 PM
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Old 08-14-2020, 3:44 PM
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whats silly is even if the mags are made legal we cant dros a handgun that comes with hi caps cuz they were tested for the roster with 10 round mags so they would be off roster haha.....man this state makes my head hurt...
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Old 08-14-2020, 3:44 PM
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Calgunners are busy selling large cap mags thinking a magic bullet just arrived. Cart before the horse. Good luck with that.
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Old 08-14-2020, 4:14 PM
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Originally Posted by SanDiego619 View Post
So technically, it is still not legal to purchase, acquire, convert, or import magazines over 10 rounds? I am really surprised all these companies are shipping if the plain reading of what Michel said is that it is unclear of it is legal.

But imagine going to court for breaking a law that was just ruled to be unconstitutional. That would seem a little silly to try to prosecute someone for that.

The PC falls on the importer. The exporters have civil liability if CA goes that route, but that's civil.

I think that a lot of these companies don't want to miss out on the revenue provided by Californians who are all but happy to pay full price if not more for a few "LCM". I'm sure that if Cheaper Than Dirt allowed it at 300%, some foolish folks would support them again.
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Old 08-14-2020, 4:17 PM
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40%?? Where are you hearing that? He is going to win by a landslide.

Remember hillary had a 97% chance of winning up until she lost.
Democrats will be able to rig this election better knowing what happened. Unfortunately, I don't see Trump winning.

Heck, if I was impartial (which I am not), I wouldn't vote for Trump based on his Corona virus missteps. Trump is his own worst enemy, Biden's poll numbers went up by Biden doing nothing.

Yes, the Democratic platform is like a Sanders manifesto, but your average voter is not going to realize that. Especially from a media that says Harris is a "pragmatic moderate" when those that follow politics know better.
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Old 08-14-2020, 4:41 PM
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Democrats will be able to rig this election better knowing what happened. Unfortunately, I don't see Trump winning.

Heck, if I was impartial (which I am not), I wouldn't vote for Trump based on his Corona virus missteps. Trump is his own worst enemy, Biden's poll numbers went up by Biden doing nothing.

Yes, the Democratic platform is like a Sanders manifesto, but your average voter is not going to realize that. Especially from a media that says Harris is a "pragmatic moderate" when those that follow politics know better.
Corona virus “missteps”? You should read less propaganda.

But. We know how this case will proceed. Taken en banc, stayed, and overturned. Cert denied. The end.
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Old 08-14-2020, 4:45 PM
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Originally Posted by Offwidth View Post
Corona virus “missteps”? You should read less propaganda.

But. We know how this case will proceed. Taken en banc, stayed, and overturned. Cert denied. The end.
Unless Trump wins and replaces Ginsburg and/Breyer. Then cert approved, mag bans struck down throughout the entire country, followed by AW bans, safety rosters, and “may issue” CCW permits.
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Old 08-14-2020, 4:48 PM
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Corona virus “missteps”? You should read less propaganda.

But. We know how this case will proceed. Taken en banc, stayed, and overturned. Cert denied. The end.
So anyone ordering mags now is going to jail?
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