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Old March 30, 2012, 08:03 PM   #326
Al Norris
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Another Alan Gura win today!

The Judgment for Fletcher v. Haas is in: http://ia600607.us.archive.org/23/it...35876.31.0.pdf

This case dealt with the MA law that forbid firearms permits to non-citizens, (lawfull resident aliens).

Both the SAF and Comm2A were dismissed as associational plaintiffs for failing to show any individual member was harmed. Thus they failed standing.

Plaintiffs Fletcher and Pryal were granted their MSJ.

Issued immediately following the memorandum and order (the above link) was the Judgment: http://ia600607.us.archive.org/23/it...35876.32.0.pdf

Quote:
ORDERED, ADJUDGED AND DECREED:
Judgment for the Plaintiffs Fletcher and Pryal against the Defendants. Enforcement of Massachusetts General Laws chapter 140, sections 121-131P against Plaintiffs solely on the basis of their permanent resident alien status is declared to be in violation of the Second Amendment to the United States Constitution and the Defendants are hereby enjoined from denying Plaintiffs Fletcher and Pryal any firearm permits or licenses on that basis.
Emphasis in the original.

Unlike Judge Legg (Woolard) and Judge Howard (Bateman), Judge Woodlock has issued an actual injunction against the State, as applied to these two plaintiffs.

The State will have to "find" another reason to deny the firearms license to these folks, and chances are good, that the State won't want to push that part further.

As it now stands, the State has 30 days to appeal.
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Old April 9, 2012, 08:57 PM   #327
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The opening brief was filed in the New Jersey case, Piszczatoski (was Muller v. Maenza).

The PDF is attached to that thread.
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Old April 22, 2012, 03:46 PM   #328
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Case #66, Charles Nichols v. Edmund G Brown Jr et al, (a pro se case) was recommended to be dismissed by the Magistrate, on Apr. 5th, 2012. Chuck cannot appeal (he says he will, sigh, bad precedent Chuck, let it lie) until the District Judge affirms the Magistrates recommendation.

Case #71 Wisconsin Carry Inc et al v. City of Milwaukee et al, was entered today. The docket is here and the thread is here.
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Old April 23, 2012, 07:40 PM   #329
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Added Jackson et al v. King et al (#72). This case seeks to invalidate New Mexico CCW law as it affects the inability of lawful resident aliens to obtain a permit.
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Old April 24, 2012, 01:09 PM   #330
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Charles Nichols v. Edmund G Brown Jr et al

Under discussion here. Plaintiff seeks to challenge California's recent ban on open carry.
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Old April 24, 2012, 09:49 PM   #331
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Oral arguments from the March 19th Hearing for Peterson at the 10th Circuit is here (a 6.6MB MP3).
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Old April 25, 2012, 11:26 PM   #332
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The opening brief of Schrader v. Holder at the DC Circuit has been uploaded. See this thread for the file: http://thefiringline.com/forums/showthread.php?t=426806
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Old April 28, 2012, 09:31 PM   #333
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There is a new twist to the goings on in the Ezell case. Please read my last couple of entries in that thread: http://thefiringline.com/forums/showthread.php?t=423216
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Old May 9, 2012, 09:07 AM   #334
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Yesterday, April 8th, 2012, marked the last day for NC to file an appeal in Bateman v. Perdue. Since the State failed to appeal, the Judges ruling in striking down those (anti-gun carry) portions of the Emergency Powers Act stands as law.

Today, Alan Gura and the SAF will file their response to Maryland's attempt to justify the Stay of Judgment in Woolard v. Sheridan.
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Old May 13, 2012, 10:04 PM   #335
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Over the last week or so, I've been getting ready to post a separate thread on the progress of all the cases listed back on page 1. I have made numerous changes in that time. You may wish to refresh your memory and review those cases.
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Old May 18, 2012, 08:50 AM   #336
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Several updates (orals at Circuit) were just posted to the threads dealing with those cases. They should be near the top of this forum... For a day or two.
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Old June 4, 2012, 07:52 PM   #337
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CA1/Hightower has (presumably) drawn a bad panel: Lynch, Lipez, Thompson.

Hon. Sandra L. Lynch, Chief Judge.
** Nominatd by Pres. Clinton and confirmed Mar. 17, 1998.
Hon. Kermit V. Lipez, Senior Circuit Judge.
** Nominatd by Pres. Clinton and confirmed Apr. 7, 1998.
Hon. O. Rogeriee Thompson, Circuit Judge.
** Nominated by Pres. Obama and confirmed Mar. 17, 2010.

Oral Arguments will be this Wednesday, June 6th. Both sides will have 15 minutes to present their case.


Illinois had originally asked for consolidation of Moore/Shepard, which was denied, although a concession was made that the two cases would argue on the same day, before the same panel....
Quote:
06/04/2012 38 ORDER: The court, on its own motion, orders that these appeals are CONSOLIDATED for purposes of oral argument and disposition. The appellants and appellees in both cases will share 20 minutes per side. L.C. [38] [6403075] [12-1269, 12-1788] (CD)
So now they are consolidated! Charles Cooper (NRA) and Alan Gura (SAF) will each get 10 minutes and the State will have 20 minutes.

Oral Arguments will be this Friday, June 6th. We will not know the panel until that morning.
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Old June 6, 2012, 04:33 PM   #338
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The MP3 (18MB) of the Hightower orals are out. See this thread for details: http://thefiringline.com/forums/showthread.php?t=478432
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Old June 12, 2012, 01:16 AM   #339
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Um, Al I would like you to read this order in Sylvester, et al. v. Harris, et al. I believe it is a trial by jury....in California. Trial is set for 25 March 2014, page 5 has that.
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Old June 12, 2012, 02:39 AM   #340
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This case has to do with the second and subsequent waiting periods for firearms in California. The obvious point is that a cooling off period for someone who is already a legal gun owner would fail even a rational basis test.
Discussion at Calguns here:
http://www.calguns.net/calgunforum/s...ight=sylvester
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Old June 12, 2012, 09:34 AM   #341
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NatoRepublic: Back on May 5th, a Joint Scheduling Report (#13) was submitted to the court. The court held a telephonic hearing (#14) on this matter on May 15th. The result of that meeting was the Scheduling Order (#15) that you have attached to your post.

What this means is that an extended period of Discovery has been initiated by both parties and the court agrees to that timetable. A date for a non-jury trial (trial by the judge) has been set for March 25, 2014 (essentially, 2 years from now).

I suspect that the reasoning for this somewhat lengthy case has to do with what is happening elsewhere, that could potentially enhance Jason Davis' case (if things go the way we would like).

This case is a departure from the way we have been seeing our 2A cases being handled: Lose fast to get to circuit. That has to do with the nature of the 9th circuit which seems to give "public safety" reasons a great deal of deference. Knowing this, there must be time for the other circuits to weigh in on just how much a States "public safety" mantra can be allowed to interfere with a fundamental right.
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Old June 19, 2012, 05:08 PM   #342
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Federal judge strikes down part of Chicago's gun law

http://www.chicagotribune.com/news/l...,7474675.story

I see this as significant because it prevents previous violations of draconian or unconstitutional gun laws being used as a basis to deny firearms "permits".

In Chicago, a firearms permit means being permitted to purchase and posess a firearm.

It's also very interesting that Judge Der-Yeghiayan's words are in the record now (emphasis mine):

Quote:
“The same constitution that protects people’s right to bear arms prohibits this type of indiscriminate and arbitrary governmental regulation," he continued. "It is the opinion of this court that any attempt to dilute or restrict a core constitutional right with justifications that do not have a basis in history and tradition is inherently suspect.”
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Old June 19, 2012, 10:13 PM   #343
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Thanks for that, LC, and welcome to the Firing Line! I actually saw this over at MDShooters and was busy reading the opinion, before I logged in here.

This one was definitely "under the radar!" There's a lot more to this decision than first blush might indicate.

I'll be adding this to the list (it's not done, Chicago will appeal), and starting a new thread on this (if someone else doesn't before I get it written up).
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Old June 20, 2012, 05:21 PM   #344
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From the quotes in the news report, the rationale could be expanded to include the federal prohibition against possession of firearms by one subject to a domestic violence restraining order or a misdemeanor conviction for (domestic) battery.
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Old June 24, 2012, 06:14 PM   #345
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An update to three cases at the 9th Circuit.

I'm posting here, so I don't have to duplicate the posts in the individual threads and because the third case has no thread (as yet).

In Richards v. Prieto:

Quote:
06/04/2012 45 Filed (ECF) Appellants Calguns Foundation, Inc., Adam Richards, Second Amendment Foundation and Brett Stewart Motion to hear this case before the panel which will hear case 10-56971. Date of service: 06/04/2012. [8200863] (DK)

06/19/2012 46 Filed clerk order (Deputy Clerk: GS): The appellants’ motion to lift the stay of appellate proceedings in No. 11- 16255 is granted. The stay of appellate proceedings is lifted in No. 11-16255. [8220426] [10-56971, 11-16255] (SM)
Case #10-56971 is the Peruta case... Which is the next entry.

Quote:
05/18/2012 84 Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta Motion to lift stay. Date of service: 05/18/2012. [8184252] (CDM)

05/22/2012 85 Filed (ECF) Appellee William D. Gore response opposing motion (,motion to lift stay). Date of service: 05/22/2012. [8186780] (JC)

05/25/2012 86 COURT DELETED INCORRECT/DUPLICATE ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [87]. Original Text: Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta Motion to lift stay. Date of service: 05/25/2012. [8191708] (CDM)

05/25/2012 87 COURT-ENTERED FILING (to replace [86] with correct filing type). Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta reply to response (motion to lift stay). Date of service: 05/25/2012. [8192084] (ASW)

06/01/2012 88 Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta citation of supplemental authorities. Date of service: 06/01/2012. [8199885] (CDM)

06/19/2012 89 Filed clerk order (Deputy Clerk: GS): The appellants motion to lift the stay of appellate proceedings in No. 11- 16255 is granted. The stay of appellate proceedings is lifted in No. 11-16255. [8220426] [10-56971, 11-16255] (SM)
I think that last entry means that the stay is also lifted in Peruta, but I could be wrong. Otherwise, why would the clerk make the entry about the other case (Richards)?

Current status of Birdt v. Beck at the 9th:

Quote:
05/26/2012 10 Submitted (ECF) Opening brief for review. Submitted by Appellant Jonathan Birdt. Date of service: 05/26/2012. [8192964]--[COURT UPDATE: Removed Excerpts of Record (notified party filed in paper format only). Resent NDA. 05/30/2012 by RY] (JB)

05/31/2012 11 Filed clerk order: The opening brief [10] submitted by Jonathan Birdt is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. [8196616] (WP)

06/01/2012 12 Filed Appellant Jonathan Birdt excerpts of record in 3 volumes. Served on 05/26/2012. [8200196] (WP)

06/07/2012 13 Received 7 paper copies of Opening brief [10] filed by Jonathan Birdt. [8206335] (SD)
At issue?

Quote:
Did the District Court err in finding, under an intermediate scrutiny standard, that Defendants were justified in denying Appellants’ Fundamental Rights under the Second Amendment to possess a firearm for self-defense, outside of the home, by denying his application for a permit to carry a concealed weapon (hereinafter CCW Permit) by determining that there was a nexus between criminals who commit crimes and law abiding citizens seeking statutory permits to exercise their Fundamental Rights who might then commit a homicide because they were granted a permit?
Jon Birdt waives oral argument.

The brief is short and to the point; terse would be a word to describe this brief. Nonetheless, it is of higher caliber than we've seen from this plaintiff to date.
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File Type: pdf CA9 Birdt v Beck Opening Argument.pdf (163.7 KB, 13 views)
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Old June 24, 2012, 07:10 PM   #346
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Wow. That might be Birdt's best work. Good move waiving oral arguments, as he is no great orator. Question, though: Shouldn't the conclusion include a clear demand/prayer for relief?
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Old June 25, 2012, 12:50 AM   #347
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Um. Yeah. Birdt is starting to get the hang of this, ain't he?
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Old June 25, 2012, 08:29 PM   #348
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Quote:
Good move waiving oral arguments, as he is no great orator.
I was wondering why he waived oral argument. It is a bit unusual to do so unless it is a weak appeal. An appellant normally has the uphill battle and usually wants every opportunity to persuade the appellate court that the lower court was wrong. There are exceptions, of course.
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Old June 25, 2012, 09:53 PM   #349
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A not much talked about case, Scocca v. Smith, a Don Kilmer CCW case based not upon the 2A but upon the Equal Protection clause of the 14th amendment was just dismissed. This case was specific in that it did not implicate the 2A at all.

The Docket is here: http://www.archive.org/download/gov....67.docket.html

The Order granting the County's MTD is here: http://www.archive.org/download/gov....38467.40.0.pdf

Interesting procedure used by Judge Chen (who took over the case from Judge Fogel on May 19, 2011). The case was stayed, pending Nordyke on Feb. 14, 2012. The Stay was lifted on June 12th, with a Case Management Conference set for July 13th. Then, last Friday, the Judge issued his Order Granting Defendants #9 MTD.

The lawsuit had 3 claims. 1) A violation of the 14th amend. EP clause; 2) A violation of the CA EP clause; and 3) A violation of CA Civil Code § 52.3.

We will have to wait and see what the plaintiffs will do.

The Judge dismissed counts 2 and 3 with prejudice but count 1 was dismissed with leave to file an amended complaint within 30 days.
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Old June 26, 2012, 08:28 PM   #350
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As Al mentioned, this case was an Equal Protection case based on how concealed carry permits are issued (or not). Nevertheless, there was some discussion about the 2A as the "right" involved in an Equal Protection claim impacts the analysis of the claim. The district court made one rather startling statement (to me at least). It recognized that the panel's opinion in Nordyke had been vacated by the 9th Circuit en banc but stated:
Quote:
"Although the Nordyke panel decision is no longer binding
authority (in light of the en banc decision), the reasoning of the panel decision is still persuasive – i.e., that “heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms for self-defense.” Nordyke, 644 F.3d at 783.
Opinion at p. 9.

WHAT? You're citing an opinion that the rest of the circuit court bench has said is not good?

Nevertheless, the plaintiff has standing problems because there were only conclusory allegations made that others similarly situated were treated differently; i.e., no specific facts were alleged.

In addition, the court said:
Quote:
Here, Mr. Scocca has failed to adequately state a claim of substantial burden of Second Amendment rights sufficient to trigger strict security under the equal protection clause. Nowhere in his complaint has he included any factual allegations explaining how his right to keep and bear arms was substantially burdened as a result of Defendants’ actions. Indeed, as Defendants argue, at best Mr. Scocca has simply alleged in his complaint that he would prefer to carry a concealed weapon in order to conduct his work more effectively.
Opinion at p. 11.

The dismissal on the federal claim was without prejudice and the court has allowed 30 days to amend the complaint. The plaintiff also sought relief for a state claim and it was dismissed with prejudice. Normally, a party cannot appeal a dismissal of part of a case until a judgment on the whole case is entered. Since leave to amend the federal claim was granted, I don't believe the case is yet appealable.
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