Koppel v Bonta: 2023 denial of CCW, Orange Co

[RickD427]

I think it depends what "criminal case" means in the fifth amendment context. My Sheriffs CCW process requires you to tell them if your a terrorist or not.

NYSRPA v. Bruen found that Sheriff's can't have a subjective process, GMC is subjective. They can't just have any process they choose.

Please see my comments about the McCarthy case in my previous post. If the Sheriff asks "Are you a Terrorist", then I have to think that the self-incrimination clause is triggered.

I think that you may be overstating the subjective process part of the NYSRPA decision. Justice Thomas authored a specific holding in the decision that the use of subjective processes to determine "Good Cause" violated the Constitution. I didn't see a similar holding as to "Good Moral Character." IMHO, that's a very reasonable inference to make, but it's not in the holding (I only scanned the dicta while preparing this response - If any can cite more specifically, please chime in).

But it's clear that NYSRPA does recognize the ability of the state to maintain a permit issuance statute that comports with its holding. That supports an inference that if a person does not complete the application (in all of it's parts to include the shrink's exam), they don't get the permit.

[Drivedabizness]

Smart move. Not trying to hide his mistake but apologizing while at the same time gong after Caifornia's expert liars with the declaration of a wit that Koppel can't afford to pay the cost of. Looking at his Reply, the poor guy was only 10 minutes late, but he was late.

The State of CA is routinely late

[BAJ475]

Please see my comments about the McCarthy case in my previous post. If the Sheriff asks "Are you a Terrorist", then I have to think that the self-incrimination clause is triggered.

I think that you may be overstating the subjective process part of the NYSRPA decision. Justice Thomas authored a specific holding in the decision that the use of subjective processes to determine "Good Cause" violated the Constitution. I didn't see a similar holding as to "Good Moral Character." IMHO, that's a very reasonable inference to make, but it's not in the holding (I only scanned the dicta while preparing this response - If any can cite more specifically, please chime in).

But it's clear that NYSRPA does recognize the ability of the state to maintain a permit issuance statute that comports with its holding. That supports an inference that if a person does not complete the application (in all of it's parts to include the shrink's exam), they don't get the permit.

My friend, might it be a bit too far to say "recognize[s] the ability of the state to maintain a permit issuance statute"? The high court clearly recognized the existence of such permit issuance statutes, but did they really find that such statutes were constitutional? I acknowledge that this if a fine point and that I may be nitpicking, but this is a discussion among friends. So, while you state that this supports an inference that if a person does not complete the application (in all of it's parts to include the shrink's exam) they don't get the permit, what are your thoughts about the constitutionality of including a "shrink's exam" in the CCW application process?

[BAJ475]

The State of CA is routinely late

and wrong.

[abinsinia]

Please see my comments about the McCarthy case in my previous post. If the Sheriff asks "Are you a Terrorist", then I have to think that the self-incrimination clause is triggered.

I think that you may be overstating the subjective process part of the NYSRPA decision. Justice Thomas authored a specific holding in the decision that the use of subjective processes to determine "Good Cause" violated the Constitution. I didn't see a similar holding as to "Good Moral Character." IMHO, that's a very reasonable inference to make, but it's not in the holding (I only scanned the dicta while preparing this response - If any can cite more specifically, please chime in).

But it's clear that NYSRPA does recognize the ability of the state to maintain a permit issuance statute that comports with its holding. That supports an inference that if a person does not complete the application (in all of it's parts to include the shrink's exam), they don't get the permit.

This case is about this very subject. Here is Koppel's request for preliminary injunction,

https://storage.courtlistener.com/recap/gov.uscourts.cacd.884299/gov.uscourts.cacd.884299.19.1.pdf

Here's a quote from it,

That lack of ??narrow, objective, and definite standards? guiding licensing officials . . . requiring the ?appraisal of facts, the exercise of judgment, and the formation of an opinion?? is just what concerned the Bruen Court about may-issue laws. Bruen at 2138, n. 9

SB2 purports to remove GMC because it's questionably legal under Bruen, but they replace it with something similar under a different name.

Also in Koppel's brief he claims he complied with two of the exams, but was not willing to comply with a third.

[RickD427]

My friend, might it be a bit too far to say "recognize[s] the ability of the state to maintain a permit issuance statute"? The high court clearly recognized the existence of such permit issuance statutes, but did they really find that such statutes were constitutional? I acknowledge that this if a fine point and that I may be nitpicking, but this is a discussion among friends. So, while you state that this supports an inference that if a person does not complete the application (in all of it's parts to include the shrink's exam) they don't get the permit, what are your thoughts about the constitutionality of including a "shrink's exam" in the CCW application process?

This is Calguns, we're really good at "picking at nits" on this forum. Yes, I do draw the inference that by recognizing the existence of permitting schemes, and without taking exception to them, that the Court has approved of them.

In reading between the lines of the Justice Thomas' opinion, I'm left with the very firm opinion that he had to do a lot of "massaging" of the content to get five of his colleagues to join in it. I would have preferred to see a much more concise decision that simply held any requirement to get a permit, or to pay a fee, in order to exercise a constitutional right was unconstitutional. I have to think that such a view was advanced in the Court's deliberations and did not receive enough support to become a majority opinion.

Rome wasn't built in a day, and major changes in an area of constitutional law occur by degrees. I think it will take additional cases to mature the concept that discretionary decision making has no place in the exercise of constitutional rights. That covers both the use of "Good Moral Character" evaluations, and the findings of the shrinks.

Part of the evolution of case law is to gain some experience in how previous rulings have "played out." We're already seeing many governments exploiting the "Sensitive Places" that NYSRPA permitted for tighter controls becoming almost all places. That experience will likely cause the marginal justices who concurred in NYSRPA becoming more likely to support a stronger opinion in future cases. My thought is that a "Sensitive Place" is one where the government assumes the responsibility for personal protection in exchange for denying folks the ability to protect themselves - thereby becoming liable in tort for injuries suffered in "Sensitive Places." That would reduce the scope real fast.

[RickD427]

This case is about this very subject. Here is Koppel's request for preliminary injunction,

https://storage.courtlistener.com/recap/gov.uscourts.cacd.884299/gov.uscourts.cacd.884299.19.1.pdf

Here's a quote from it,



SB2 purports to remove GMC because it's questionably legal under Bruen, but they replace it with something similar under a different name.

Also in Koppel's brief he claims he complied with two of the exams, but was not willing to comply with a third.

Please see my reply to Mr. "BAJ475" above. I think that Mr. Koppel is right on track, and that drawing an analogy between the use of discretionary criteria to determine "Good Cause" and "Good Moral Character" is sound. But I think that so long as the Supreme Court authors decisions that allow for semantic exploitation, that we're gonna see semantic exploitation.

IMHO, the best Supreme Court decisions have been ones that created very simple, easy to understand, and hard to evade, rules of law. The "The Fourth Amendment Protects People, not Places" from the Katz v U.S. being a very good example of such a rule.

[Drivedabizness]

My friend, might it be a bit too far to say "recognize[s] the ability of the state to maintain a permit issuance statute"? The high court clearly recognized the existence of such permit issuance statutes, but did they really find that such statutes were constitutional? I acknowledge that this if a fine point and that I may be nitpicking, but this is a discussion among friends. So, while you state that this supports an inference that if a person does not complete the application (in all of it's parts to include the shrink's exam) they don't get the permit, what are your thoughts about the constitutionality of including a "shrink's exam" in the CCW application process?

Friends - there are elephants in the room to guide our discussions:

"State may require a license, but:
The process must be objective (this would cover BOTH GC and GMC) and,
It must not be too onerous or expensive

While this dicta is unhelpful (especially line 1) I'm pretty sure the thinking was "they make these processes subjective, onerous and expensive in order to chill exercise". Do you think that if you (or SCOTUS) toldGavin Newsom "F You - let my people go and we had easy access, he wouldn't take his little red wagon and move on?

[guntrust]

This is Calguns, we're really good at "picking at nits" on this forum. Yes, I do draw the inference that by recognizing the existence of permitting schemes, and without taking exception to them, that the Court has approved of them.

In reading between the lines of the Justice Thomas' opinion, I'm left with the very firm opinion that he had to do a lot of "massaging" of the content to get five of his colleagues to join in it. I would have preferred to see a much more concise decision that simply held any requirement to get a permit, or to pay a fee, in order to exercise a constitutional right was unconstitutional. I have to think that such a view was advanced in the Court's deliberations and did not receive enough support to become a majority opinion.

Rome wasn't built in a day, and major changes in an area of constitutional law occur by degrees. I think it will take additional cases to mature the concept that discretionary decision making has no place in the exercise of constitutional rights. That covers both the use of "Good Moral Character" evaluations, and the findings of the shrinks.

Part of the evolution of case law is to gain some experience in how previous rulings have "played out." We're already seeing many governments exploiting the "Sensitive Places" that NYSRPA permitted for tighter controls becoming almost all places. That experience will likely cause the marginal justices who concurred in NYSRPA becoming more likely to support a stronger opinion in future cases. My thought is that a "Sensitive Place" is one where the government assumes the responsibility for personal protection in exchange for denying folks the ability to protect themselves - thereby becoming liable in tort for injuries suffered in "Sensitive Places." That would reduce the scope real fast.

Bruen recognized existence of shall-issue regimes and disapproved of subjective may-issue schemes. I would say with respect to the former it more than recognized existence because the opinion illustrated examples (cost, delay) where shall-issue might be unconstitutional, implicitly recognizing the constitutionality of non-burdensome shall-issue.

[AlmostHeaven]

This is Calguns, we're really good at "picking at nits" on this forum. Yes, I do draw the inference that by recognizing the existence of permitting schemes, and without taking exception to them, that the Court has approved of them.

In reading between the lines of the Justice Thomas' opinion, I'm left with the very firm opinion that he had to do a lot of "massaging" of the content to get five of his colleagues to join in it. I would have preferred to see a much more concise decision that simply held any requirement to get a permit, or to pay a fee, in order to exercise a constitutional right was unconstitutional. I have to think that such a view was advanced in the Court's deliberations and did not receive enough support to become a majority opinion.

Rome wasn't built in a day, and major changes in an area of constitutional law occur by degrees. I think it will take additional cases to mature the concept that discretionary decision making has no place in the exercise of constitutional rights. That covers both the use of "Good Moral Character" evaluations, and the findings of the shrinks.

Part of the evolution of case law is to gain some experience in how previous rulings have "played out." We're already seeing many governments exploiting the "Sensitive Places" that NYSRPA permitted for tighter controls becoming almost all places. That experience will likely cause the marginal justices who concurred in NYSRPA becoming more likely to support a stronger opinion in future cases. My thought is that a "Sensitive Place" is one where the government assumes the responsibility for personal protection in exchange for denying folks the ability to protect themselves - thereby becoming liable in tort for injuries suffered in "Sensitive Places." That would reduce the scope real fast.

This is the key. Ultimately, the Supreme Court is only as strong on gun rights as five Justices can agree to sign. The District of Columbia v. Heller majority opinion contained an entire section, that Justice Scalia included because Justice Kennedy was on the fence regarding recognizing the individual right to keep and bear arms at all, significantly qualifying the scope of the Second Amendment, which essentially made the whole ruling useless and allowed Democratic states to infringe with impunity.

Then, Justice Kavanaugh decided to copy and paste an entire bullsh*t passage into a concurring opinion, weakening NYSRPA v. Bruen. Frankly, I am disappointed that the GOP burned so much energy getting Kavanaugh confirmed only for him to be so weak.

Regardless of my fury, future gun control cases will continue the trend of only deciding as much or as little as can command a majority on the high court.

[GetMeCoffee]

This is the key. Ultimately, the Supreme Court is only as strong on gun rights as five Justices can agree to sign. The District of Columbia v. Heller majority opinion contained an entire section, that Justice Scalia included because Justice Kennedy was on the fence regarding recognizing the individual right to keep and bear arms at all, significantly qualifying the scope of the Second Amendment, which essentially made the whole ruling useless and allowed Democratic states to infringe with impunity.

Then, Justice Kavanaugh decided to copy and paste an entire bullsh*t passage into a concurring opinion, weakening NYSRPA v. Bruen. Frankly, I am disappointed that the GOP burned so much energy getting Kavanaugh confirmed only for him to be so weak.

Regardless of my fury, future gun control cases will continue the trend of only deciding as much or as little as can command a majority on the high court.

I think that a bit has changed over the past year. The pendulum is swinging back and people like Kavanaugh, who where thrown off balance by crazy protesters and the seeming direction the country was headed, are now able to see that there is momentum building in the other direction. Also, they've seem how off the rails the states are going. I'm thinking that the coming opinions will harden up a bit.

[AlmostHeaven]

I think that a bit has changed over the past year. The pendulum is swinging back and people like Kavanaugh, who where thrown off balance by crazy protesters and the seeming direction the country was headed, are now able to see that there is momentum building in the other direction. Also, they've seem how off the rails the states are going. I'm thinking that the coming opinions will harden up a bit.

I pray that you are correct.

[Rickybillegas]

This is Calguns, we're really good at "picking at nits" on this forum. Yes, I do draw the inference that by recognizing the existence of permitting schemes, and without taking exception to them, that the Court has approved of them.

In reading between the lines of the Justice Thomas' opinion, I'm left with the very firm opinion that he had to do a lot of "massaging" of the content to get five of his colleagues to join in it. I would have preferred to see a much more concise decision that simply held any requirement to get a permit, or to pay a fee, in order to exercise a constitutional right was unconstitutional. I have to think that such a view was advanced in the Court's deliberations and did not receive enough support to become a majority opinion.

Rome wasn't built in a day, and major changes in an area of constitutional law occur by degrees. I think it will take additional cases to mature the concept that discretionary decision making has no place in the exercise of constitutional rights. That covers both the use of "Good Moral Character" evaluations, and the findings of the shrinks.

Part of the evolution of case law is to gain some experience in how previous rulings have "played out." We're already seeing many governments exploiting the "Sensitive Places" that NYSRPA permitted for tighter controls becoming almost all places. That experience will likely cause the marginal justices who concurred in NYSRPA becoming more likely to support a stronger opinion in future cases. My thought is that a "Sensitive Place" is one where the government assumes the responsibility for personal protection in exchange for denying folks the ability to protect themselves - thereby becoming liable in tort for injuries suffered in "Sensitive Places." That would reduce the scope real fast.

I think that's a very concise and excellent analysis of the 'sensitive place' intention of the supreme court.
And they have to know and be perturbed at the fact that these states are in effect making a mockery of the BRUEN decision by doing so.

[TruOil]

It looks like they're claiming he failed two prior psychological evaluations.

...for lack of good moral character. the SO says the psych evaluation is based on "objective criteria," but how they will prove this will be interesting to see. In any event, the "gmc" component--which the sheriff I assume requires of all applicants--is of questionable constitutionality, particularly where, as here, the applicant admittedly had good cause and no criminal record. There is nothing in Bruen that says anything other than that the applicant be "law-abiding." It should make no difference whether you are a total jerk to qualify for a CCW absent evidence of prior violent propensities.

[Chewy65]

...for lack of good moral character. the SO says the psych evaluation is based on "objective criteria," but how they will prove this will be interesting to see. In any event, the "gmc" component--which the sheriff I assume requires of all applicants--is of questionable constitutionality, particularly where, as here, the applicant admittedly had good cause and no criminal record. There is nothing in Bruen that says anything other than that the applicant be "law-abiding." It should make no difference whether you are a total jerk to qualify for a CCW absent evidence of prior violent propensities.

Bad assumption. Ornge County only requires some CCW seekers to see a shrink, while all deputy applicants must see one. How does it determine who has to take a psych exam? Possibly made in the exercise of highly subjective discretion.