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Old March 6, 2012, 11:08 AM   #51
Al Norris
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Considering the restraints that Judge Legg was under (Masciandaro and Chester), his decision was bold and decisive.

The 4th Circuit will have to overturn both those prior cases in order to reverse Woolard. I don't see this happening.

Several things are rolling around my pea-brain. I see this as a plus for the upcoming Peterson orals (10th Circuit). I also see this as bolstering the arguments of Moore in their upcoming 7th Circuit briefs.

Fact is, this is going to play at all the current carry cases in the 1st, 2nd, 3rd, 5th, and 9th Circuits.

As far as any injunctive relief, I suspect we will see what Judge Legg has in mind in the next couple of days. I also expect MD to ask for a stay of the relief and be denied by Judge Legg. In order to get a stay, the State has to show that they might succeed on the merits of their argument. Legg has already ruled that they fail as a matter of law.

MD can, of course, move for a stay when they file their appeal to the 4th. It is unclear what the administrative Judge will do in that case.

Best case scenario is that the 4th denies the stay, MD appeals that denial to the Chief Judge (Roberts) or directly to the SCOTUS who also denies the motion. That would be a clear signal (to every court in the U.S.) that Judge Legg's opinion will stand.
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Old March 6, 2012, 11:10 AM   #52
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It seems to me that this case isn't significantly different from Moore v Madigan in Illinois... am I incorrect?

This is encouraging for me because (I think) its a judge looking at Heller and MacDonald and making the opposite decision that Judge Sue Myerscough made in Moore.
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Old March 6, 2012, 04:14 PM   #53
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Is it too late in Shepard v Madigan to cite this as authority?
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Old March 6, 2012, 05:01 PM   #54
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I haven't looked at the Moore v. Madigan docket, but probably not. When a decision is issued that is particularly relevant (& that wasn't previously available), the attorney can often cite the new case as supplemental authority. Counsel will have to notify the court and opposing counsel, but yes, there are ways of saying, "Hey, Judge! Lookit this new case!"
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Old March 6, 2012, 05:16 PM   #55
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Quote:
I'll ask again. Does anyone know if Judge Legg ordered injunctive relief in this case? None of the reporting. I'e ead mentions it. The published opinion does not either.
It seems we are going to see the details separately. from the conclusion:

Quote:
The Court will, by separate Order of even date, GRANT Woollard’s Motion for Summary Judgment and DENY Defendants’ Motion for Summary Judgment.
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Old March 6, 2012, 05:22 PM   #56
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Moore v. Madigan (SAF) is being appealed to CCA7. The opening brief was filed on 03-03-2012. Wollard can be cited as a supplemental authority via a rule 26J letter (I think I have this correct).

Shepard v. Madigan (NRA) is in discovery. Wollard can be cited as a supplemental authority.
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Old March 6, 2012, 06:15 PM   #57
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^ Yes, I believe you are correct and it will (should) help.
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Old March 7, 2012, 09:26 AM   #58
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From the Baltimore Sun: Lawyers say gun ruling likely to withstand appeal

http://www.baltimoresun.com/news/mar...,6673248.story

You will note that even anti-gun professors doubt that the 4th will overturn Judge Legg's decision.

It's a given that there are some few things that we should be disagreeing with, but overall, Judge Legg is the first out with a true intermediate based scrutiny. Not some rational basis test, called intermediate. For this, we thank him.
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Old March 7, 2012, 09:50 AM   #59
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As I said before, that opinion is both well-reasoned and well-written. When it does go up on appeal (and I think the MD AG has said that it will), I think that MD is going to have to go pretty far out on a limb to look for error. The briefs ought to be interesting, to say the least.
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Old March 7, 2012, 12:11 PM   #60
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Spats, I'd say we can expect some highly innovative legal construction in the appellant's briefs, and some hilarious ripostes in response.
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Old March 7, 2012, 02:42 PM   #61
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Baltimore Sun used a picture of a Glock...
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Old March 7, 2012, 05:48 PM   #62
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Judge Benson Legg, appointed by President George H.W. Bush
Judge Sue Myerscough, appointed by President Barack Obama
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Old March 7, 2012, 06:49 PM   #63
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Judge Benson Legg, appointed by President George H.W. Bush
Judge Sue Myerscough, appointed by President Barack Obama
In another thread, we are asked, what would be so bad about Obama being re-elected. Here's one answer!
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Old March 7, 2012, 11:07 PM   #64
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Gene Hoffman has already said that this decision will be cited as an authority in all carry cases going forward.
First thing I thought of was how this case could be used in California. Hopeful over here, but not holding my breath.

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Old March 8, 2012, 11:05 AM   #65
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The Court issued its decision (on multiple motion for MSJ), last Friday (Mar. 2) but did not publish it until Monday (Mar. 5). In that order, the court did not include any specific relief.

Such orders are, as a general rule, issued at the same time as the decision, but not always. We expected the Judge to file orders by the end of the week.

MD AG Gansler publically stated that MD would appeal.

Yesterday, Mar. 7th, the defendants (MD) filed a motion to clarify (FRCP Rule 59(e)) the injunctive relief and a motion to stay (FRCP Rule 62(c)) the relief.

The motion for clarification (http://www.archive.org/download/gov....80772.54.0.pdf) is a legal tactic to force the Judge to declare the specific relief he intends to provide the Plaintiff, by way of further litigation.

The Plaintiff now has a right to respond to this motion.

The Defendants wanted the Plaintiff to respond by Monday, Mar. 12, but the Plaintiffs have consented to responding by Friday, Mar. 16, provided that the Defendants filed their motion by Wednesday, Mar. 7. The Defendants have so filed.

Immediately, the Defendants also filed a motion for expedited briefing (http://www.archive.org/download/gov....80772.55.0.pdf) on the two motions filed above.

Normally, the Defendants would have 28 court days to file their appeal. This stops the clock for as long as these motions remain unanswered by the court.

It is interesting to note that in their Motion to Stay, the defendants articulate the very same "Public Safety" claims that the Judge has ruled unconstitutional in administering the licensing scheme chosen by the Legislature.

For those that have not followed closely, What the State is claiming is the same thing that all the States have claimed so far: "We cannot trust guns in the hands of the law-abiding public. It is a danger to the public safety that such citizens be allowed to roam the streets with guns."
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Old March 16, 2012, 10:29 PM   #66
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The plaintiff in Woollard has filed their response to the States motion for Clarification and Motion to Stay: http://www.archive.org/download/gov....80772.59.0.pdf

Some Gura Goodies(TM):
Quote:
But regardless of what the State “generally” does, or whether a declaratory judgment “can have the same practical effect as an injunction” (emphasis added), at least for now, it is apparent that Defendants are still enforcing the “good and substantial reason” requirement pending the outcome of their motion for a stay. Woollard has still not received his renewal handgun carry permit. And on information and belief, based upon numerous reports from individuals who have applied for handgun carry licenses in the wake of the Court’s decision, lack of a “good and substantial reason” is holding up the process. But Plaintiffs are legally entitled to injunctive relief.
- Page 3-4
Quote:
Defendants vigorously contested the merits of Plaintiffs’ claims, but never questioned Plaintiffs’ entitlement to injunctive relief — because there was never any doubt that Plaintiffs would be entitled to an injunction as a matter of law if the challenged provision were held unconstitutional.
- Page 5
Quote:
Having prevailed on the merits of their claim, Plaintiffs have nothing left to prove with respect to their entitlement to injunctive relief.
- Page 6
Quote:
Defendants suggest that this Court’s decision would leave them with a dangerously inadequate handgun carry permitting scheme, a circumstance so dire and unusual that it warrants, essentially, the suspension of a fundamental constitutional right. Not so. The Court’s decision places Maryland firmly in the national mainstream with respect to the right to carry handguns, and still leaves the state with the Fourth Circuit’s most restrictive regulatory landscape on the topic.
- Page 8
Quote:
In short, Marylanders now enjoy a handgun carry licensing scheme that is, in its core structure, profoundly ordinary. It was the unconstitutional statute struck down by the Court, not the Court’s decision, that effected a dangerous and unusual legal regime out of step with prevailing American practice. This is hardly the stuff of emergency stays or uncharted threats to public safety.
- Page 9
Quote:
"The terms offered by Plaintiffs are fairly straightforward. First, the Defendants shall refrain from enforcing the unconstitutional law at issue in this case. Second, the Defendants shall not resurrect the forbidden practice encompassed in that law, under the guise of some other authority. And finally, Woollard should have his permit renewed, because it was only rejected for an unconstitutional reason, and Defendants never offered any other reason for denying the permit renewal. It is far too late in the day for Defendants to suggest that Woollard could be disqualified for some other reason independent of the issue in the litigation. Def. Br., 3/7/12, p. 6. Presumably, were Woollard disqualified on other grounds, Defendants would have raised that defense earlier. Of course, Defendants do not articulate exactly how Woollard might no longer be eligible for the permit they had already once renewed"
- Page 12
Quote:
"Maryland has long opted to license the carrying of handguns, openly or concealed. If Maryland authorities truly wish to require all handgun carry permit holders to carry their handguns openly, Def. Br., 3/7/12, pp. 12-13, that option is not foreclosed by the Court’s opinion, and no stay need be obtained to effectuate that policy choice. Maryland’s legislature remains open for business, and indeed, is in session as of this writing through April 9, 2012. See http://mlis.state.md.us/ (last visited March 13, 2012). Moreover, Maryland law already allows Defendant Brown to limit the scope of permits to open or concealed carry. Md. Public Safety Code Ann. § 5-307(b). This provision enables Brown to adopt additional restrictions, which may or may not be constitutional depending on their terms. In any event, no stay is required to enable Defendant Brown to conjure handgun permit restrictions."
- Page 14-15

Every time I think that Alan Gura has just outdone himself, he goes and does it again!

The State will probably file their reply sometime next week (they sought expedited briefing, so they have to file pretty darn quick). Judge Legg may or may not ask for orals. I suspect not. Final Ruling could come within 2 weeks.
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Old March 17, 2012, 12:16 AM   #67
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To be consistent with the links in the 2A archive, threads are now merged and a new title is given.
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Old March 18, 2012, 01:10 AM   #68
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Originally Posted by Al Norris;[/quote

The State will probably file their reply sometime next week (they sought expedited briefing, so they have to file pretty darn quick). Judge Legg may or may not ask for orals. I suspect not. Final Ruling could come within 2 weeks.
What would this final ruling be for? The state's appeal?

Also thank you so much for your relentless updating of all the various cases going on around the country. With out you a lot of us would be left in the dark.
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Old March 18, 2012, 09:58 AM   #69
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What would this final ruling be for? The state's appeal?
No. The final ruling is for the district court level only.

The State can still appeal to the 4th Circuit.

However, as tight as the ruling by Judge Legg, their appeal will be on very shaky ground. The 4th Circuit would have to overturn Masciandaro and Chester to overturn Woollard. Almost every pundit agrees with this, pro and anti alike.

Add to this, that a panel cannot overturn the decision of another panel. Only the en banc 4th Circuit could do this. I don't see this as happening, nor do many others, more clued-in than I.

Now, as to what may happen. In his response to the States question of clarification, Gura has made a very strong case for the Judge to impose an actual injunction. What we will see, in the next few days, is the States reply and how they will try and worm their way into dismissing the injunction. Ought to be entertaining!

Since the State has yet to file their notice of appeal (and they won't, until this matter of clarification is settled), a Stay cannot be given (even though they asked for one). So, until they file their notice of intent, I don't expect the Judge to give it much thought, other than to cite the applicable FRCP.

There's another thing at play here. The Memorandum of Opinion is a Declaratory Judgment. It declares that a single section of the code (5(ii)) to be unconstitutional. Alan Gura, in his response, has indicated that despite the State saying that they generally will obey the Judgment, they are currently operating as if the Judgment were not in force.

That is a very strong indicator that the Judge will issue a permanent injunction. Depends upon how far the Judge leans towards our "cause" and his own reaction to the State thumbing their noses at him.

Here's the thing. With a Declaratory Judgment, the State cannot be held in contempt. With an actual injunction, they can.
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Old March 18, 2012, 10:14 AM   #70
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Great stuff, Al. Thanks for all the updates.
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Old March 18, 2012, 12:50 PM   #71
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I love reading Alan Guras' "Briefs".

He basically calls them "Stupid" and it makes me wonder if they, the defendants, have even read the court findings.
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Old March 22, 2012, 07:52 AM   #72
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Today, a teleconference will be made on the matter of the Motion to Stay and the Motion for Clarification.

This is moving forward at light speed. Expect Judge Legg to rule shortly.

Quote:
2012-03-20 61 0 ORDER scheduling teleconference re 54 Defendants Motion for Clarification and for a Stay Pending Appeal. Signed by Judge Benson Everett Legg on 3/20/12. (jnls, Deputy Clerk) (Entered: 03/20/2012)
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Old March 29, 2012, 05:14 PM   #73
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On March 20th, the Judge ordered a teleconference in which the following would be discussed:
  1. Whether the “good and substantial reason” language is severable.
  2. Whether the State will now issue a permit to Mr. Woollard.
  3. Assume the excision of the “good and substantial reason” requirement. How would Maryland's permitting system compare with the system in force in other states?
  4. In terms of handgun violence, how does Maryland compare with states with less restrictive permitting systems?

That teleconference came on March 22nd. We now have a bit more info in what the Judge is thinking about.

This morning, two docket entries have shown up. The first, Docket Entry #62 is a notice of a jointly proposed order. The second, Docket Entry #62.1, is the draft proposal and a briefing schedule.

The proposed order is for an Injunction to be issued and a briefing on the Stay while at appeal.

It appears that the Judge, in the teleconference, indicated a willingness to impose the injunction. All that is left is to consider the Stay.

The briefing schedule on the Stay is as follows:
  1. The defendants shall submit an opening brief on or before April 19, 2012;
  2. The plaintiffs shall submit a response brief on or before May 9, 2012; and
  3. The defendants shall submit a reply brief on or before May 23, 2012.

This is only a proposal, but it may as well be set in stone, since both parties agree.

What this means is that an Injunction will be issued. Mr. Woollard will get his permit. A temporary Stay will be in effect while this matter is completely briefed. Within a couple of weeks after May 23rd, the Judge will issue his final opinion on the matter of the Stay. The clock then starts ticking on the appeals process.

The MD legislature will be out of session by this time, so there will be no chance of a legislative remedy any sooner than 2013. The 4th Circuit could have a ruling on this by that time.

Theoretically, the Governor could call an emergency session, but this is an election year and he would be foolish to call them back and take away from their chances of being reelected - actually, it would be political suicide to call an emergency session in an election year.

I should also note that this is all procedurally correct. Judge Legg doesn't want anything to come between his decision and an appeal (on other grounds).

I still suspect that he will deny the Stay, and toss the whole thing up to the 4th Circuit.
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Old March 30, 2012, 11:45 AM   #74
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Can ask a dumb question?

OK, the judge issues his injunction and it is appealed. The appeal is denied, and it is appealed to the supremes, and they deny to hear the appeal..That is, all above just let the original ruling stand as is....

Then at what level does this Judge's ruling stand??? US, 4th CC, just MD?
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Old March 30, 2012, 12:53 PM   #75
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Quote:
Originally Posted by hermannr
...OK, the judge issues his injunction and it is appealed. The appeal is denied, and it is appealed to the supremes, and they deny to hear the appeal..That is, all above just let the original ruling stand as is....
It looks like you're positing that the 4th Circuit affirms the District Court. Then whatever opinion the 4th Circuit publishes affirming the District Court become the law in the 4th Circuit.

I suppose that the 4th Circuit could simply adopt the memorandum decision of the District Court, in which case, assuming the 4th Circuit publishes, that would be the law in the 4th Circuit.

What I don't know is if the Rules in the 4th Circuit would permit the court of appeals to issue a decision not certified for publication. That would be highly unusual when there is an unsettled question of law.
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