Miller v. Bonta 9th Ckt "assault weapons": Held for Duncan result 1-26-24

[SWalt]

ORDER FILED. William A. FLETCHER, Consuelo M. CALLAHAN, Mark J. BENNETT In light of this court's published order granting a stay in Duncan v. Bonta, 83 F.4th 803, 805'06 (9th Cir. 2023) (en banc) (concluding that the attorney general of California is likely to succeed on the merits and has shown that California will be irreparably harmed absent a stay), and the similarities between Duncan and this case, we grant appellants' motion (Docket Entry No. 6) and administratively stay the district court's October 19, 2023 permanent injunction and judgment. In granting an administrative stay, we do not intend to constrain the merits panel's consideration of the merits of this appeal in any way. The administrative stay shall remain in effect until the merits panel decides the appeal or issues an order lifting the stay. We sua sponte expedite this appeal. The opening brief is due November 9, 2023. The answering brief is due November 22, 2023. The optional reply brief is due November 29, 2023. No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(1). The Clerk will place this appeal on the calendar for December 2023. See 9th Cir. Gen. Ord. 3.3(g).

CALLAHAN, Circuit Judge, dissenting in part: I would deny appellants' motion for a stay pending appeal. I do not believe we are bound by the published order in Duncan v. Bonta, 83 F.4th 803 (9th Cir. 2023), and I do not believe appellants have otherwise met their burden of showing a likelihood of success on the merits or that they will suffer irreparable injury absent a stay. I concur in the order insofar as it expedites this appeal. [Entered: 10/28/2023 09:07 AM]

Now we have a reason why Duncan was considered a "come back case". Betting a dozen donuts the en banc panel knew they would be deferred to with their continued stay. Its a "similarly situated" case.

[AlmostHeaven]

Given that the 9th is going to rule for the state no matter what, either via a 3 judge or en banc panel, the best thing these judges can do is overturn Benitez's ruling as quickly as possible. If the 3 judge panel rules for the state, then at least we can skip having to redo the case for the en banc panel where the outcome is predetermined anyway.

Exactly. Winning at the 3-judge panel stage only leads to further delays with en banc review.

[rplaw]

Motions panels are random.
If the En Banc had not taken the Duncan Stay request, it would have been denied.

^this.

It was the en banc decision on the stay in Duncan that forced the hand of the motions panel to also stay Miller. If you read the Miller stay order you can see that the motions panel believed it was bound by Duncan's en banc order.

The saving grace is that the motions panel allowed the regular appellate panel to decide whether to keep the stay or not. It also took "expedited" to heart and forced the hand of the 9th.

Nevertheless I don't expect the appeal panel to lift the stay. Status quo insists on keeping the stay in place until the appeal is decided. At that point I expect the plaintiff's to succeed and the statute to be permanently enjoined. At which time the State will request en banc and the 9th will reverse the appellate panel's decision and plaintiff's will have to request cert from SCOTUS.

You know, business as usual when it comes to 2A rights.

[BobB35]

^this.

It was the en banc decision on the stay in Duncan that forced the hand of the motions panel to also stay Miller. If you read the Miller stay order you can see that the motions panel believed it was bound by Duncan's en banc order.

The saving grace is that the motions panel allowed the regular appellate panel to decide whether to keep the stay or not. It also took "expedited" to heart and forced the hand of the 9th.

Nevertheless I don't expect the appeal panel to lift the stay. Status quo insists on keeping the stay in place until the appeal is decided. At that point I expect the plaintiff's to succeed and the statute to be permanently enjoined. At which time the State will request en banc and the 9th will reverse the appellate panel's decision and plaintiff's will have to request cert from SCOTUS.

You know, business as usual when it comes to 2A rights.

So the 9th will continue to delay, delay, delay.

Which other case and there are numerous ones what are currently being appealed...read the states filings...will be decided by SCOTUS before anything from the 9th even gets there?

Are they much further along, because it took the 9th almost 15 months after Bruen to do what could have been done in 2 weeks.

[splithoof]

Are they much further along, because it took the 9th almost 15 months after Bruen to do what could have been done in 2 weeks.

The 9th is taking their timeframe guidance from Los Angeles County, mirroring the issuance of CCW permits. 15 months to two years is about what we are expecting for the two processes.
Both entities hope appellants and applicants die off of old age during the long process.

[rplaw]

So the 9th will continue to delay, delay, delay.

Except they can't. The motions panel already set the briefing schedule and directed the clerk to calendar the hearing in Dec.

What they couldn't do is change how long the panel will sit on their decision, but at some point someone can file a writ on the basis that the case was expedited and yet... nada after X months.

Baird needs to use this expedited schedule as an example and file a writ requesting an order to the trial court to rule or get off the pot.

[Dvrjon]

Except they can't. The motions panel already set the briefing schedule and directed the clerk to calendar the hearing in Dec.

How many of us have seen a 2A case heard on the initial briefing schedule?

Show of hands?

Anyone?

Bueller?

The State will file motions for additional time citing the short schedule, the conflict with other important cases and the holiday seasons, the change out of Daylight Savings Time, the pitiful performance of the USC football team and the need to buy new calendars before the new year. Oh, and it did/did not rain.

[rplaw]

How many of us have seen a 2A case heard on the initial briefing schedule?

Show of hands?

Anyone?

Bueller?

The State will file motions for additional time citing the short schedule, the conflict with other important cases and the holiday seasons, the change out of Daylight Savings Time, the pitiful performance of the USC football team and the need to buy new calendars before the new year. Oh, and it did/did not rain.

Except the order prohibits extensions of time based on the usual reasons.

You should go read it ^^ it's posted up there ^^ but in case you're too busy to do that;

The opening brief is due November 9, 2023. The answering brief is due November 22, 2023. The optional reply brief is due November 29, 2023. No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(1). The Clerk will place this appeal on the calendar for December 2023. See 9th Cir. Gen. Ord. 3.3(g).

[AlmostHeaven]

How many of us have seen a 2A case heard on the initial briefing schedule?

Show of hands?

Anyone?

Bueller?

The State will file motions for additional time citing the short schedule, the conflict with other important cases and the holiday seasons, the change out of Daylight Savings Time, the pitiful performance of the USC football team and the need to buy new calendars before the new year. Oh, and it did/did not rain.

ORDER FILED. William A. FLETCHER, Consuelo M. CALLAHAN, Mark J. BENNETT In light of this court's published order granting a stay in Duncan v. Bonta, 83 F.4th 803, 805'06 (9th Cir. 2023) (en banc) (concluding that the attorney general of California is likely to succeed on the merits and has shown that California will be irreparably harmed absent a stay), and the similarities between Duncan and this case, we grant appellants' motion (Docket Entry No. 6) and administratively stay the district court's October 19, 2023 permanent injunction and judgment. In granting an administrative stay, we do not intend to constrain the merits panel's consideration of the merits of this appeal in any way. The administrative stay shall remain in effect until the merits panel decides the appeal or issues an order lifting the stay. We sua sponte expedite this appeal. The opening brief is due November 9, 2023. The answering brief is due November 22, 2023. The optional reply brief is due November 29, 2023. No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(1). The Clerk will place this appeal on the calendar for December 2023. See 9th Cir. Gen. Ord. 3.3(g).

At least the Ninth Circuit motions panel has explicitly commanded that there shall be no extensions of time.

Whether the appeals court actually follows this remains to be seen.

[Elgatodeacero]

Theoretically the State could file a formal motion for an extension of time, but with the timeline in this order it isn’t feasible.

—————

31-2.2. Extensions of Time for Filing Briefs
(a)
Streamlined Extensions of Time: If a party has not previously filed a motion for an extension of time to file an opening, answering, reply or cross-appeal brief under subsection (b) of this rule, that party may obtain a single streamlined extension of time to file that brief not to exceed 30 days. The streamlined extension of time is not available:
(1)
if a case has been previously expedited;
(2)
when a Notice of Oral Argument has issued; or
(3)
for any brief filed in a Preliminary Injunction Appeal (Ninth Circuit Rule 3-3), an Incarcerated Recalcitrant Witness Appeal (28 U.S.C. ? 1826; Ninth Circuit Rule 3-5) or a Class Action Fairness Act appeal (28 U.S.C. ? 1453(c)).
Parties registered for electronic filing may request a streamlined extension of time online via the Appellate Electronic Filing System using the “File Streamlined Request to Extend Time to File Brief” event. A request must be made on or before the brief’s due date.
Parties not registered for electronic filing may request a streamlined extension of time by completing Form 13 and placing the form in the mail to the Clerk on or before the brief’s due date.
The Clerk will approve requests that comply with the rule and will provide the parties with a new schedule. The Clerk will inform parties not eligible for relief under this subsection as to the appropriate method to obtain relief. (Rev. 1/1/15)
(b)
Written Motions for Extension of Time to File a Brief: In all other cases, an extension of time may be granted only upon written motion supported by a showing of diligence and substantial need. (Rev. 1/1/15)
The motion shall be filed at least 7 days before the expiration of the time prescribed for filing the brief, and shall be accompanied by a declaration stating: (Rev. 12/1/09)
(1)
when the brief is due;
(2)
when the brief was first due;
(3)
the length of the requested extension;
(4)
the reason an extension is necessary;
(5)
movant’s representation that movant has exercised diligence and that the brief will be filed within the time requested;
(6)
whether any other party separately represented objects to the request, or why the moving party has been unable to determine any such party’s position; and
(7)
that the court reporter is not in default with regard to any designated transcripts. (Rev. 12/1/09)
A conclusory statement as to the press of business does not constitute a showing of diligence and substantial need. (Rev. 1/96)
Cross Reference: (Rev. 12/1/09; Rev. 1/1/15; Rev. 7/1/16)
•
Circuit Rule 11-1. Filing the Reporter’s Transcript, specifically, 11-1.2. Notice of Reporter Defaults
•
Circuit Rule 27-11. Motions; Effect on Schedule
•
Circuit Advisory Committee Note to Rule 32-2 (effect on schedule of motion for leave to file longer brief)

[AlmostHeaven]

Now that the motions panel has handed off Miller v. Bonta to the merits panel, when will the 3-judge panel be drawn?

Whether good or bad on the Second Amendment, not knowing the composition of the panel feels worst of all.

[MajorSideburns]

Heller and Bruen were both "step in" cases where they granted cert for a motion (as opposed to an appeal) instead of sending it back down with instructions.

As far as today, SCOTUS can only rule on what's in front of them and there have not been any post-Bruen cases that have gotten to them. Bianchi had perhaps the best chance given that the 4th did not remand, but they have been sitting on their hands since last December. Now it looks like Duncan will reach there first since the 9th's En Banc panel grabbed it from the 3-Judge panel.

The Circuit court's job is to make corrections from the District Judge and SCOTUS corrects the Circuits. SCOTUS cannot make a "correction" until the Circuit makes a ruling or a clear mistake in the process.

Isn't deliberately ignoring the Bruen decision a clear mistake or illegal ruling in the process?

[ar15barrels]

Isn't deliberately ignoring the Bruen decision a clear mistake or illegal ruling in the process?

Yes.
You can bring that up with the USSC as the 9th will not do anything about that.

[AlmostHeaven]

Something that I find confusing is if opening briefs are due on November 9, how has a 3-judge merits panel not been drawn yet? Is the motions panel taking the appeal?

[SpudmanWP]

The November 3-judge panel has not been empaneled yet.