Current 2A Cases

[maestro pistolero]

The court rests on the unproven and incorrect assertion that there is a correlation between carry-licensed individuals and increased crime. Setting aside the fact that the government cannot sweep aside a fundamental right because they believe it's too dangerous, the evidence is overwhelmingly to the contrary, as licensees are credited with a dramatically lower crime rate than the the public at large.

BS meter PEGGED.

[lawdog2]

Al has the audio file for the current 2A cases and he will upload them when he gets off work.

[Al Norris]

A bit earlier, Librarian linked todays oral arguments at the 9th Cirsuit of the 3 cases, Peruta, Richards and Baker within the Peruta thread. Therefore I no longer need to upload the audio files.

Please direct your comments to the proper thread.

Comments on the Peruta case should be made here: http://thefiringline.com/forums/showthread.php?t=427710

Comments on the Richards case should be made here: http://thefiringline.com/forums/showthread.php?t=451451

Comments on the Baker case should be made here: http://thefiringline.com/forums/showthread.php?t=460887

[Al Norris]

If you haven't heard the news, yesterday we were handed a HUGE win at the 7th Circuit Court of Appeals!

See the Illinois case thread, here, and start reading from post 173.

[Al Norris]

I have just finished updating cases #71 thru #76 (here), for those that are following.

[Al Norris]

I haven't said much about the following docket entries, but in light of everything that is going on, I would be remiss in not sharing what this is about.

11/08/2012 [10017698] Notice of appearance submitted by Robert A. Wolf; and Andrea Kershner for Appellee Charles F. Garcia for court review. Certificate of Interested Parties: No. Served on 11/08/2012. Manner of Service: ECF/NDA. --[Edited 11/08/2012 by SDS to remove pdf from entry as the pleading has been filed] [11-1149] RW

11/08/2012 Open Document [10017734] Notice of appearance filed by Ms. Andrea J. Kershner and Mr. Robert Wolf for Charles F. Garcia. CERT. OF INTERESTED PARTIES: n. Served on 11/08/2012. Manner of Service: ECF/NDA. [11-1149]

12/07/2012 Open Document [10025937] Supplemental authority filed by Mr. John W. Suthers and Mr. Peter Weir. Served on 12/07/2012. Manner of Service: ECF/NDA. [11-1149] MDG

12/08/2012 Open Document [10026018] Response filed by Gray Peterson to Appellees 28(j) letter filed 12/7/12. Served on 12/08/2012. Manner of Service: ECF/NDA. [11-1149] JM

12/17/2012 Open Document [10028562] Supplemental authority filed by Gray Peterson. Served on 12/17/2012. Manner of Service: ECF/NDA. [11-1149] JM

If you remember, last March 19th, the Peterson case was argued at the 10th Circuit. Since then, all we've heard were crickets.

In the above docket listing, it appears that the City of Denver tried to file some sort of amicus brief pleading on the merits (11-08-2012), as an "interested party." That brief was rejected by the court. So then they simply wanted to be recognized.

Then on 12-07-2012, Colorado decides to file a 28J letter (Supplemental Authority) on the decision in Kachalsky. The next day, Peterson files a 28J response, letting the court know that the CA2 decision does not implicate this case whatsoever, rather it goes to show that even the CA2 recognizes that the right exists outside the home, as long as a license can be had, which in the instant case, cannot be had.

Finally, on 12-17-2012, Peterson files their own 28J letter, citing the Moore case.

So we have the 7th Circuit saying that the State must provide some form of carry, while the 2nd Circuit says it's provided, just not everyone qualifies. Meanwhile, Woollard is gathering wool in the 4th and what's the poor 10th to do?!

Tomorrow we will get to read Alan Gura's response to the 7th request. Don't forget that Charles Cooper (NRA attorney for Shepard) will file a like response. By the 4th of February, a vote will be called and we may get to see if there will be an en banc hearing or not. If no vote is called for, there will be no rehearing.

No rehearing? Madigan will file a petition for cert.

If Woolard is decided against us, Alan Gura will file for cert. If Judge Legg's decision is affirmed, I don't believe MD will file for cert (they have a bunch of anti-gun laws being prepared for this legislative session - none of these will moot the case, but they will cause more challenges in court, buying even more time).

If Peterson is decided against us, John Monroe will file for cert. If the decision goes against CO, I don't think that CO will file, for other reasons (they have stated in open court that the State holds that the right to carry outside the home exists, they just don't want to have to issue non-resident permits).

For those that watch the Courts, this is High Drama (and court politics) at its finest!

Meanwhile, enjoy the crickets.

[Al Norris]

See my edit, immediately above.

11/08/2012 [10017698] Notice of appearance submitted by Robert A. Wolf; and Andrea Kershner for Appellee Charles F. Garcia for court review. Certificate of Interested Parties: No. Served on 11/08/2012. Manner of Service: ECF/NDA. --[Edited 11/08/2012 by SDS to remove pdf from entry as the pleading has been filed] [11-1149] RW

11/08/2012 Open Document [10017734] Notice of appearance filed by Ms. Andrea J. Kershner and Mr. Robert Wolf for Charles F. Garcia. CERT. OF INTERESTED PARTIES: n. Served on 11/08/2012. Manner of Service: ECF/NDA. [11-1149]

The two attorneys are (new) attorneys for the City of Denver.

The first entry was a request to certify that the two attorneys listed were the interested parties (City of Denver) new attorneys. This document was not the actual certificate but was more of a supplemental pleading.

Remembering that Denver elected not to participate in the appeal, the court clerk took a dim view of this filing and removed it. Notified of the removal, the interested parties filed the proper notice (the second entry).

Frank, or another attorney, can correct me, but this appears to be that the City of Denver was getting antsy about the long delay in the decision and tried, in an entirely inappropriate manner, to sway the court. The clerk slapped their hands. Still, they then filed a formal certificate of interested parties.

Nothing else on the docket happened until a month later (Dec. 7th), the State filed a 28J letter in regards Kachalsky. Gray filed a response (Dec. 8th) and then on Dec. 17th, Gray filed a 28J letter in regards Moore.

The State did not file a response, nor did the court recognize the City of Denver, formally.

I'm unsure what to make of this, other than Denver is distressed that a decision has not been reached and that the State could not refute how Moore could apply to this case.

[jonbirdt]

Briefing now complete on 2 of 3 cases from Los Angeles in the 9th.

[Al Norris]

Case #12 on the list is a case that copycatted Jackson v. San Francisco.

There have been attempts by SF to relate the cases and was defeated by the NRA. Then the NRA petitioned the Court for status as Amicus Curiae. That was granted and the NRA argued that Pizzo be dismissed on grounds of having no standing.

The result came in last December. The judge denied the MSJ by Gorski on just those grounds as laid out by the NRA.

After some somewhat lengthy negotiations, the City and County off SF were dismissed (Gorski did this in order to not to have to pay the attorney fees of SF). Gorski, as I understand it, now has about 40 days to file an appeal on the State law grounds that were dismissed at trial court.

This will put this particular case way behind any of the leading CA cases at the 9th.

All in all, this is a good thing. Nothing good will come of cases brought by this particular maverick attorney and could actually harm the 2A movement in CA and/or throughout the 9th Circuit.

[maestro pistolero]

A good outcome under the circumstances. A better outcome would have been Gorski had to pay dearly for his ignorance and recalcitrance. He has been warned repeatedly about creating bad precedent.

[Al Norris]

With all the goings on in NYS, I forgot to check another important case at appeals: Dearth v. Holder. So here's the docket at the CADC:

10/04/2012 DOCKETING STATEMENT FILED [1398009] by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 10/04/2012 ] [12-5305] (Gura, Alan)

11/01/2012 UNDERLYING DECISION IN CASE submitted [1402593] by Stephen Dearth and Second Amendment Foundation, Inc. [12-5305] (Gura, Alan)

11/01/2012 STATEMENT OF INTENT REGARDING APPENDIX DEFERRAL FILED [1402597] by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 11/01/2012 ] Intent: AppxNotDeferred [12-5305] (Gura, Alan)

11/01/2012 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES FILED [1402598] by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 11/01/2012 ] [12-5305] (Gura, Alan)

11/01/2012 TRANSCRIPT STATUS REPORT [1402601] by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 11/01/2012 ]. Status of Transcripts: Final - All transcripts needed for the appeal have been completed and received. [12-5305] (Gura, Alan)

11/01/2012 STATEMENT OF ISSUES FILED [1402602] by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 11/01/2012 ] [12-5305] (Gura, Alan)

11/01/2012 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES FILED [1402695] by Eric H. Holder, Jr. [Service Date: 11/01/2012 ] [12-5305] (Dasgupta, Anisha)

12/20/2012 CLERK'S ORDER filed [1411182] setting briefing schedule: APPELLANT Brief due 02/01/2013. Appendix due 02/01/2013. APPELLEE Brief due on 03/04/2013. APPELLANT Reply Brief due 03/18/2013 [12-5305]

01/11/2013 CONSENT UNOPPOSED MOTION filed [1414717] by Stephen Dearth and Second Amendment Foundation, Inc. to extend time to file brief to 02/08/2013. [Service Date: 01/11/2013 ] Pages: 1-10. [12-5305] (Gura, Alan)

01/17/2013 CLERK'S ORDER filed [1415760] granting appellants' consent motion to extend time to file the brief and appendix [1414717-2], The following revised briefing schedule will now apply: APPELLANT Brief due 02/08/2013. Appendix due 02/08/2013. APPELLEE Brief due on 03/11/2013. APPELLANT Reply Brief due 03/25/2013 [12-5305]

So, after all this time, the opening brief is due this Friday.

[Al Norris]

In the case of Mishaga v. Monken (#24 on the list) we haven't heard a thing, since last Jan (of 2012). We have been waiting for Judge Sue Meyerscough to render a decision on pending motions for summary judgment.

Look at the docket:

01/10/2012 TEXT ORDER: The Parties have filed a Joint Motion to Vacate Trial and Associated Pre-trial Deadlines (d/e 27) (Motion). For good cause shown, the Motion is GRANTED. The Final Pretrial Conference set for January 23, 2012 and the Jury Trial set for February 7, 2012 are VACATED and will be rescheduled as needed after this Court rules on the pending motions for summary judgment (see d/e 19, 22). Entered by Judge Sue E. Myerscough on 1/10/2012. (MJ, ilcd) (Entered: 01/10/2012)

12/15/2012 28 NOTICE OF SUPPLEMENTAL AUTHORITY re 22 MOTION for Summary Judgment (Attachments: # 1 Exhibit)(Manley, James) (Entered: 12/15/2012)

It would be easy to see, by the date the supplemental authority was filed, that this is to call notice to the decision in Moore.

Judge Meyerscough is now caught between a rock and a hard place, since this is an IL case filed in the same district as Moore, which won at CA7. I'm willing to bet that Meyerscough is now waiting to see the results of the petition for en banc at CA7. Then she will wait to see whether Posner's decision is upheld or, in the alternative, if cert is filed by the State and if that is granted or denied.

Meanwhile, the crickets are chirping just outside of her chambers window!

Does the name, Meyerscough, sound familiar? She is the judge that denied the injunction in Moore - this has to hurt!

[wolfwood]

George Young v. State of Hawaii is on appeal
Opening Brief

http://www.scribd.com/doc/125758371/...f-George-Young

[Al Norris]

The long overdue decision in Peterson v. Suthers (was LaCabe), the 10th Circuit has affirmed the lower court.

I have only briefly browsed the decision, but essentially, the Court has glossed over carry (of any form) to attack concealed carry in specific. It is not a right in the eyes of this panel. Nor does this interfere with Gray's right to travel. Fifty-two pages to say this.

You can find the decision here: Click here to download as an Acrobat PDF

[publius42]

7th Circuit lets Moore v Madigan result stand.

http://www.saf.org/viewpr-new.asp?id=423

[Al Norris]

And for those wondering, here's the opening brief at the DC circuit in Dearth v. Holder.

[Librarian]

New York response to Kachalsky cert petition

http://www.hoffmang.com/firearms/kac...2013-03-14.pdf

h/t Gene Hoffman

[Al Norris]

On 03-11-2013, the Appellee/Defendant filed their response.

Also, the Appellant/Plaintiff have motioned to extend time to file their reply (which was granted) until 04-08-2013.

[KorDemographics]

On March 3, 2013 Federal Judge S. James Otero denied the motion to dismiss by California Attorney General Kamala Harris noting that Mr. Nichols violates that state's ban on openly carrying a loaded firearm the moment he steps outside of his home. Judge Otero added that unless the Attorney General promises not to enforce the law, she cannot be dismissed from the lawsuit.

Mr. Nichols filed an Amended Complaint challenging the recently enacted Unloaded Open Carry bans as well as the ban on Loaded Open Carry. He also filed a motion for a preliminary injunction.

Today, the Attorney General filed her Answer to the Complaint. Not only did she not promise not to enforce the law, she admits that she does indeed enforce the challenged statutes.

A hearing on the motion for a preliminary injunction is scheduled for May 20th in Los Angeles.

[wolfwood]

young v. state of hawaii

supplemental brief

http://www.scribd.com/doc/135411305/...al-Brief-1-pdf

[Al Norris]

Case #70, Winbigler v. Warren County, Ill. Housing Authority, has been resolved!

In meetings that occurred last November, the defendant WCHA offered a settlement that included all demands made by Plaintiff Winbigler & SAF.

Yesterday, May 1st, the Judge announced the order. The SAF announcement is here: SAF Press Release :: SAF WINS PERMANENT INJUNCTION V. PUBLIC HOUSING GUN BAN IN ILLINOIS

What took from Nov until yesterday was the Judges decision to grant all relief except the precedential declaratory relief that the lease was unconstitutional. You can read the decision and why everything but this one item was denied (for good reason) here: Order on Motion for Miscellaneous Relief.

What all this is saying is that the defendant threw in the towel and capitulated to all the plaintiffs demands. The court could not declare that the lease provisions were unconstitutional, only because the merits to that claim were never fully briefed. Hence, any such declaration would be an advisory opinion which the Federal Courts are not allowed to make.

David Sigale and the SAF will take fees.

[Davey]

What ever happened with the NY SAFE act being challenged? I remember something about the state having to defend why the law isn't unconstitutional or something like that.

[JimPage]

The state is to present its case (defending the Constitionality of it) Monday, May 13. I assume the judge will not decide for several weeks.

[Al Norris]

Latest filings in Dearth v. Holder:

03/11/2013 Open Document UNOPPOSED MOTION filed [1424377] by Stephen Dearth and Second Amendment Foundation, Inc. to extend time to file reply to 04/08/2013. Pages: 1-10. [12-5305] (Gura, Alan)

03/11/2013 Open Document APPELLEE BRIEF [1424564] filed by Eric H. Holder, Jr. [Service Date: 03/11/2013 ] Length of Brief: 9800 words. [12-5305] (Dasgupta, Anisha)

03/12/2013 Open Document CLERK'S ORDER filed [1424767] granting appellants' unopposed motion to extend time to file the reply brief [1424377-2], The following revised briefing schedule will now apply: APPELLANT Reply Brief due 04/08/2013 [12-5305]

04/08/2013 Open Document APPELLANT REPLY BRIEF [1429626] filed by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 04/08/2013 ] Length of Brief: 4,487 words. [12-5305] (Gura, Alan)

04/09/2013 Open Document CORRECTED APPELLANT REPLY BRIEF [1429746] filed by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 04/09/2013 ] Length of Brief: 4,487 words. [12-5305] (Gura, Alan)

As you know, I uploaded Holder's response (see post 417, above), so here is the Reply Brief from Alan Gura (this is the corrected document). This completes the briefing stage and we now await a scheduling for oral arguments.

[Al Norris]

Cases 81 and 82 have been updated. Case #81 is the Colorado lawsuit.

Case #82 is a new (for me) lawsuit. Here the NRA is attacking the City of Chicago's ordinances that prohibit the movement of any firearm outside the confines of a house, in violation of the 7th Circuits Moore/Sheppard decision.