Additional reactions culled from the case thread in Litigation

[silvertear]

Roger-Benitez_fights_for_freedom.jpg

[Guninator]

One issue that makes this very hard for the state is that Judge Benitez also ruled the statute that has been enjoined is a taking under the 5th Amendment.

Therefore, no matter how the courts rules on the 2nd Amendment issue, this statute would still have a major defect that renders it unconstitutional.... the state cannot take private property without compensation to the owners.

I dont want to go too much into this right now because the state is likely going to make another mistake in this litigation, but California state government has really stepped into a huge mess of its own creation and the 5th Amendment takings ruling makes this far more difficult for the state.

That's just one judge's opinion. Two or more lib judges on a Ninth Circuit panel can say just the opposite, and questions of law are given de novo review (no deference given to the trial court).

[Offwidth]

That's just one judge's opinion. Two or more lib judges on a Ninth Circuit panel can say just the opposite, and questions of law are given de novo review (no deference given to the trial court).

[Non Political Californian]

That's just one judge's opinion. Two or more lib judges on a Ninth Circuit panel can say just the opposite, and questions of law are given de novo review (no deference given to the trial court).

"Just one judge"? No, it's a federal judge.
Just one judge was all it took to strike 187, 22 and 8.
In fact, I would argue that striking 187, 22 and 8 has resulted in a higher need for that 100 round drum

[dfletcher]

I really doubt anyone is going to personally receive scrutiny. The major issue is their targeting of businesses. So much has gone down it's like a dam broke, they won't risk their entire house of cards in order to try and make a statement now. Remember, the more the merrier. Everything that happens going forward pushes things closer to Scotus which is what they want to avoid at all costs.

Lets remain calm and help each other understand the situation, it's going to be an interesting couple of days.

A few years back, when SF accused some out of state on line sellers of violating CA law re shipping in rebuild kits I got a "you may have violated the law" love letter from the city DA. Seems the company I legally purchased from agreed to hand over customer names as a condition for settlement of the matter. Now whether that mailing list was just that, a mailing list rather than a list of who was shipped a certain product, I don't know for certain.

Having said that, there's got to be a whole lot of product from many sources coming in to CA.

[signalsparks]

Just a quiet observation:

All the major pro-gun sites have exploding threads on this issue, but as of my typing, the Grabrielle Giffords (formerly LCAV) site has nothing but crickets (when searching news releases search-restricted to CA) since Feb 4th.

Other thread posters are right. If they (likely) supplied the text of Grabvin Newsom's Gunmageddon and Prop63, they're probably not going to announce anything.

Maybe when the MSM decides to pick up this story, they might find and interview everybody's favorite "gun law expert," Iggy Chinn.

I wouldn't recommend anyone interviewing him in front of a desk they want to keep.

I'll keep a bag of popcorn ready to go in the microwave, just in case.

[Non Political Californian]

Dvrjon,

You're correct in that PC 32390 was not affected by Judge Benitez' decision.

That's kinda surprising considering his discussion of that section in his dicta, and his commentary that it also was unconstitutional.

Courts are loathe to award a plaintiff more relief than was sought in their pleadings, but given the strength of his commentary, I really expected that he would also enjoin enforcement of section 32390.

But having noted that, LE agencies tend to be very respectful of federal court decisions (both dicta and holding) while a case is working through the legal system.

Even though it's technically possible for officer to still seize large-capacity magazines, I would not expect that they will do so until there is a final ruling.

If it's legal to

manufacture or cause to be manufactured, import into the state, keep for sale, or offer or exposes for sale, or give, lend, buy, or receive

Then you can't declare it to also be a nuisance.

We don't have positive rights which declare each and every thing which is permitted, we have negative rights, which restrict. If it's not explicitly illegal then it is fundamentally legal.

[AggregatVier]

To Major Caliber: You are correct. They've already dug a hole so deep they can no longer get out. This most likely ends badly for all sides once the reset starts.

[Guninator]

The Ninth can say the opposite because they have appellate jurisdiction over Benitez. Once again, the standard is de novo review. That means the appellate court will completely ignore the trial court's legal analysis and how the facts fit that law.

So no matter how awesome you find Benitez's decision, the Ninth's panel does not have to agree.

"Just one judge"? No, it's a federal judge.
Just one judge was all it took to strike 187, 22 and 8.
In fact, I would argue that striking 187, 22 and 8 has resulted in a higher need for that 100 round drum

And (two out of) three appellate federal judges can completely overturn that federal judge's opinion.

Please stop debating basic legal concepts. This is so tedious.

[Chewy65]

If it's legal to

Then you can't declare it to also be a nuisance.

We don't have positive rights which declare each and every thing which is permitted, we have negative rights, which restrict. If it's not explicitly illegal then it is fundamentally legal.

There is a difference between prosecuting a person and abating a nuisance. Even though the grandfathered in possession of magazines was not a crime, they could still be seized as a nuisance. The argument that possession cannot be a nuisance if it is a protected right is a very strong argument, but like RickD notes Benitez failed to order that the nuisance statute not be enforced.

[RickD427]

If it's legal to

Then you can't declare it to also be a nuisance.

We don't have positive rights which declare each and every thing which is permitted, we have negative rights, which restrict. If it's not explicitly illegal then it is fundamentally legal.

Actually you can, and California has opted to do so.

PC section 32390 is not new. It's been around for years, and I was around prior to CPC 32310(c) when the possession of large-capacity magazines was fully legal.

Don't confuse "legal" with "nuisance." You appear to have done so. Possession is legal, but it's also a nuisance. I'll agree with you that it's counter-intuitive. I'll agree that it doesn't make any sense. I'll even agree that it's completely asinine.

But the state can do it, and they have.

Some day, some really sharp lawyer may file a challenge to PC 32390 and win. My personal opinion is that a legal challenge would succeed in an objective court.

But that ain't happened yet.

[Elgatodeacero]

declaring a constitutionally protected item a "nuisance" cannot overcome its consitutionally protected status.

[RickD427]

declaring a constitutionally protected item a "nuisance" cannot overcome its consitutionally protected status.

OK, Yup, You're right.

Now get a published Appellate Court ruling so holding, and hen you can do away with the nuisance statute.

Until then, the statute stands, and all you're left with is the above personal opinion.

For the record, I agree with your position. I don't think the statute could withstand a constitutional challenge (and Judge Benitez did a great job of explaining why). But, for the record, my personal opinion is equally as worthless as yours.

[Dvrjon]

Dvrjon,

You're correct in that PC 32390 was not affected by Judge Benitez' decision.

That's kinda surprising considering his discussion of that section in his dicta, and his commentary that it also was unconstitutional.

Courts are loathe to award a plaintiff more relief than was sought in their pleadings, but given the strength of his commentary, I really expected that he would also enjoin enforcement of section 32390.

But having noted that, LE agencies tend to be very respectful of federal court decisions (both dicta and holding) while a case is working through the legal system.

Even though it's technically possible for officer to still seize large-capacity magazines, I would not expect that they will do so until there is a final ruling.

[Elgatodeacero]

that is not how the system operates.

a person doesnt need a published opinion on every issue.

the law operates fairly mechanically and with standard rules of construction.

if the latest issue of Playboy is legal to own and read under the first amendment, the state cannot enforce a law that says all Playboy magazines are a "nuisance" and may be confiscated and destroyed.