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Old May 10, 2012, 10:44 AM   #16
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,298
Not much has been written lately, on this case. Here is the current docket at CA2:

Quote:
01/26/2012 55 BRIEF, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509365] [11-2420]

01/26/2012 56 JOINT APPENDIX, volume 1 of 1, on behalf of Appellant Alfred G. Osterweil, FILED. Service date 01/26/2012 by CM/ECF.[509379] [11-2420]

02/07/2012 63 SCHEDULING NOTIFICATION, on behalf of Appellee George R. Bartlett, III, informing Court of proposed due date 04/26/2012, RECEIVED. Service date 02/07/2012 by CM/ECF.[519844] [11-2420]

02/07/2012 66 SO-ORDERED SCHEDULING NOTIFICATION, setting Appellee George R. Bartlett, III Brief due date as 04/26/2012, FILED.[520043] [11-2420]

02/15/2012 67 EXTRA PAPER COPIES, Joint Appendix, Volumes, on behalf of Appellant Alfred G. Osterweil, RECEIVED.[525800] [11-2420]--[Edited 02/15/2012 by DH]

04/18/2012 68 MOTION, to certify question, on behalf of Appellee George R. Bartlett, III, FILED. Service date 04/18/2012 by CM/ECF. [584194] [11-2420]

04/18/2012 69 MOTION, to extend time, on behalf of Appellee George R. Bartlett, III, FILED. Service date 04/18/2012 by CM/ECF. [584231] [11-2420]

04/24/2012 72 OPPOSITION TO MOTION to extend time [69], on behalf of Appellant Alfred G. Osterweil, FILED. Service date 04/24/2012 by CM/ECF. [588839][72] [11-2420]

04/27/2012 77 MOTION ORDER, denying motion to extend time. Appellee shall file his brief within sixty days from the date of this order, [69] filed by Appellee George R. Bartlett, III; referring motion to certify question [68] filed by Appellee George R. Bartlett, III, by DC, FILED. [593136][77] [11-2420]

04/30/2012 79 OPPOSITION TO MOTION to certify question [68], on behalf of Appellant Alfred G. Osterweil, FILED. Service date 04/30/2012 by CM/ECF. [594808][79] [11-2420]
According to #77, the Appellee must file an answering brief by June 25th.

The interesting thing is the #68 motion to certify the question. This is a ploy to take the case out of the Circuit and present the question of residency = domicile (or not) to the New York Court of Appeals (aka State Supreme Court), in light of Heller and McDonald. According to #77, the Motions Panel will decide the issue of the certification.

Quote:
Appellee George R. Bartlett, III, moves the Court to stay the briefing schedule and to certify a question of state law to the New York State Court of Appeals. Upon due consideration,

IT IS HEREBY ORDERED that Appellee’s motion to stay briefing is DENIED. Appellee shall file his brief within sixty days from the date of this order.

IT IS FURTHER ORDERED that Appellee’s motion to certify a question of state law is REFERRED to the panel that will consider the merits of the appeal.
Regardless of the fact that the State prevailed at District Court, if the State had a good case, then certification could have been asked at that level. They didn't. By making this motion now, that State must feel that they will not win the appeal on the merits and is merely looking at prolonging (delay, obfuscate, delay) the inevitable.

In Baker v. Drozdoff (was Baker v. Biaggi) 3:10-cv-00426, a Nevada Federal Court agreed that a tent in a campsite was a "home" as interpreted by Heller. That court issued a preliminary injunction against the State of Nevada. The regulation was subsequently changed and the case was dismissed without prejudice on Feb. 27th, 2012.

While Mr. Osterweil may or may not agree, if a Nevada Federal Court agrees that a temporary tent in a campsite was a "home," per Heller, the State of New York cannot maintain that a part-time resident must be domiciled in order to exercise his 2A rights.

From the last pages of the opposition brief:

Quote:
In all events, Bartlett’s certification motion itself makes clear that certification is not necessary in this case. Bartlett effectively concedes that denying Mr. Osterweil a license for in-home handgun possession because Mr. Osterweil is a part-time resident runs afoul of the Second Amendment. In the affirmation in support of his motion, Bartlett admits that the “continuing vitality” and “rationale” of New York precedent “requir[ing] not merely residence but domicile” to be eligible to apply for a handgun license “has been cast in doubt by subsequent Supreme Court jurisprudence....” Bartlett Affirmation 2.

....

This Court does not need a New York court to tell it what Heller, McDonald, and Bartlett’s certification motion make plain: prohibiting Mr. Osterweil from possessing a handgun to protect his New York home because he is a part-time New York resident violates Mr. Osterweil’s Second Amendment right.
The opposition brief to that motion is attached.
Attached Files
File Type: pdf 79 Opposition to Certify-Osterweil.pdf (125.3 KB, 1 views)
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