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Old February 22, 2013, 07:06 PM   #1
Southwest Chuck
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Peterson v LaCabe .. 10th Circuit LOSS !

Loss. 10th Affirms.
http://www.ca10.uscourts.gov/opinions/11/11-1149.pdf

Quote:
In Robertson v. Baldwin, 165 U.S. 275 (1897), the
Supreme Court stated in dicta that “the right of the people to keep and bear arms is not
infringed by laws prohibiting the carrying of concealed weapons.” Id. at 281-82. More
recently, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Court noted that “the
majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state
analogues,” and explained that “nothing in our opinion should be taken to cast doubt on
longstanding prohibitions.”
Is this another split with Moore?
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Old February 22, 2013, 07:48 PM   #2
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First off, thanks Chuck for starting this thread. I've kinda been waiting for someone to start a thread on Gray's case (meaning I shouldn't have to be the person to start all the threads).

But yes, it is a further split, and this one is not technical. The CA10 did not even address the issue of openly carrying, other than in passing. They dealt with the entire issue as one of concealed carry only.

That was not the case at the district court nor at the circuit level. At orals, it was made clear that the case was about carry in some form... Open or Concealed. The panel chose to ignore this facet and cling to concealed carry. Thereby dismissing all other arguments.

The panel actually twisted the dicta of Heller to mean what they wanted it to mean and not what Scalia actually wrote.
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Old February 22, 2013, 08:24 PM   #3
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Well, the 10th Circuit is quite conservative, and they were careful in this ruling.

We shall see if the Supremes rule that A) a state must issue a concealed carry permit to out of staters (very doubtful) or B) that concealed carry decisions are subject to strict scrutiny (which I also doubt).
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Old February 22, 2013, 08:56 PM   #4
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If CC gets strict scrutiny, it will only be because it is the only form permissible to carry.

If there is anything good about this decision, it will be because the panel itself narrowed the question.
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Old February 22, 2013, 09:35 PM   #5
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No problem Al. Thanks for all your hard work, too. I'm just waiting to see what Gray's take on this is and what course of action he may or may not take going forward.
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Old February 22, 2013, 09:41 PM   #6
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I haven't looked in at CGN today... You mean to say he hasn't said anything?
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Old February 23, 2013, 01:23 AM   #7
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Nope not a word. But in all fairness, he didn't make a comment after he lost in District for a day or two either as I recall.
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Old February 23, 2013, 11:56 AM   #8
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IANAL so I'm wondering what the options are now? Sure they could appeal but they'd be appealing with only a CC challenge. Can they get this back on track with the challenge of either CC permit or OC Denver ban?????
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Old February 23, 2013, 02:43 PM   #9
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This panel erred in several very conspicuous areas.

My guess (and that's all it is), would be a petition for a rehearing en banc.
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Old February 23, 2013, 03:19 PM   #10
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Please help me understand the significance of this ruling.

Prior to this ruling, state laws permitting concealed carry (shall issue laws) were just that, laws passed by the state legislature and signed by the respective governor. Thus, shall issue was a state-by-state political battle. The courts did not prohibit it, but neither did they require it.

Assuming the 10th circuit has the final say on this matter, what has changed? 38 states were "shall issue" and 38 states would still be "shall issue". Getting the last 12 states to become shall issue was going to be a political battle, and it would still be so under this ruling.

So is this a loss? or more of an affirmation of the status quo? Or am I missing something?
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Old February 23, 2013, 03:27 PM   #11
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It really makes me wonder if some of these Judges live in the same world as everyone else... Are they breathing some rarified air or fumes or what?

It has to be obvious to everyone involved what a big twist of the SCOTUS decision this is. They cant believe that this will stand if it makes it to the SCOTUS. So what is the point? Delay? Pray for some major change in the SCOTUS? In the final analysis what is the benefit? Ok its going to cost time and money but it wont change the outcome and they will have egg on their faces... Any clues?
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Old February 23, 2013, 09:58 PM   #12
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You were right Al. Today, Gray posted this over in the Calguns thread:

Quote:
Originally Posted by Gray Peterson View Post
Petition for rehearing/en banc or cert petition will be sought.

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Old February 24, 2013, 06:41 AM   #13
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The en banc seems to be a longshot(although there's really no downside to trying). It seems they'll only grant it in cases where it conflicts with 10th circuit precedent(there isn't any on point), SCOTUS precedent(nothing on point), or other circuit precedent(perhaps Moore, which was absent from the opinion). I also looked at the current numbers on the circuit. All active judges, plus senior judges on this panel are part of the en banc vote. Assuming one of the judges here doesn't turn around and vote to rehear their own opinion, it would involve getting at least one Obama/Clinton appointee to vote for rehearing. I have yet to see(someone correct me) ANY Dem appointed judge rule for our side in any way shape or form.
The main problem here is that the court didn't fully address the whole complaint. Whether this was Gray's fault or the court's I don't know.
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Old February 24, 2013, 08:58 AM   #14
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Folks, don't think this case presents us with a hero who was felled by a broken system. This case was bungled from its inception, and the plaintiffs played a dangerous game of brinksmanship with our rights.

Gray Peterson, CalGuns, SAF, Gura are part of a group that favors concealed carry over open carry. In this case, they deliberately withheld the open carry question from the arguments in an attempt to force the court to consider and grant only concealed carry. If that gambit works, great, but everyone who knew better told Gray and CalGuns that outright omitting an entirely satisfactory avenue of relief from would give the court an easy path to denial.

It is basic case preparation and legal drafting that every acceptable remedy be included in a claim. If the court doesn't grant you want you really want, at least the court has a "Plan B" which it can grant and give you some sort of relief. Here, the court was presented with "give me a concealed carry permit via reciprocity" or nothing. No attempt was made to bring Denver into the case or to put their horrible open carry law on the table, even though we gun owners would want open carry in Denver. No, Gray wanted a permit, and he wanted concealed carry, so he omitted the entire open carry avenue of relief from the case, and the court hung him with it. Read the opinion. It's an outright drubbing.

Despite admonishment from people whose opinions should be respected and considered, Gray and CalGuns went off half-cocked, were utterly destroyed in battle, and have given caselaw, gun owners and the firearms bar this utterly devastating precedent.

Here's how the Peterson/Gura/CalGuns/SAF argument works:

1. Plaintiffs contend that that there is a fundamental right to carry handguns in public, and though a state may regulate open or concealed carrying of handguns, it cannot ban both. [Note: right out of the box, they're hanging open carry out to dry with an incorrect argument. Open carry is always the unregulated right.]

2. Eww, open carry, we don't want people doing that, do we? No open carry, please. We won't challenge any open carry bans you have or any permit schemes that also extend to open carry.

3. Since we don't get open carry, you can't ban both, so we get concealed carry.

4. Since concealed carry requires a permit, we get one of those, too.

That's brinksmanship with a bad argument. It's a huge game of chicken with the court, and it lost in a rout in the 10th Circuit, giving the gun rights movement a huge and enduring mountain to move in all subsequent litigation.

The argument to each and every court should simply be:

1. People have a right to keep and bear arms.

2. This right extends outside the home.

3. The right to keep and bear arms outside the home, like all rights, must be free and untaxed, without prior application or permission.

4. If a jurisdiction chooses to license one form of carrying, the other must therefore be free and unencumbered.

5. Your Honor, in this jurisdiction, which is the licensed right, and which is the free and unencumbered right?

6. There is no #6. Counsel thanks the court for its consideration, sits down, and shuts up.

Despite exhortation to include it, that argument was nowhere present in Peterson's case, because that group expressly does not favor open carry. They went all in on a concealed-carry permit scheme, and the court hammered them with the avenue of relief that was patently absent from the claim.

This spectacular loss was entirely predicted, and it's difficult to see Gray Peterson and the cavalier CalGuns bunch as anything but a net enemy of gun rights.

Gray and CalGuns shouldn't get to play games with our gun rights, yet there they are, leaving a minefield of bad caselaw for those of us in the rest of the country.

To those of you who don't follow this regularly, CAlGuns/SAF and Gura lose a lot of cases. Gura has some notable wins, so he's able to keep spirits up and his image in good order with the fans, but if you listen to his orals, he regularly says some very distressing things to courts.

Methods and strategy need to improve. It's to the point where the NRA and other firearms law individuals and organizations are going to have to consider filing amici briefs against CalGuns/SAF/Gura.

Last edited by smoking357; February 24, 2013 at 09:11 AM.
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Old February 24, 2013, 11:53 AM   #15
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Interesting. I, too, don't understand the decision to forgo a challenge to the Denver law banning open carry. The court hung them out to dry on the concession. It was a risky decision that they probably regret in hindsight. They tried to undo the concession in the reply brief but it was too late. But that decision appears to limited to this case. The argument made by Gura and SAF in other cases is simply that either open carry or concealed carry must be available -- that the state cannot prohibit both. That argument prevailed in Moore sufficiently to invalidate the total ban on outside the home carry and that win was and is huge, especially with the denial of en banc. And does anyone have any serious problem with the way that Gura structured the petition for certiorari in Kachalsky with the same argument? I know that I don't. That and Moore are the next big cases, not this case.

The plaintiff's decision (and 10th Circuit's opinion focusing on that decision) not to challenge the Denver ordinance sharply lessens the damage caused by this opinion. The opinion doesn't reach the outside the home point at all and thus does not conflict with either Kachalsky or Moore. It just applies old SCT precedent that suggests in dicta that a state may ban concealed carry. I can hardly much blame the court for applying that precedent under circuit law. That opinion is rather limited to the unique situation in Colorado, where the state gives CCW permits to residents and allows open carry for everyone, except in Denver, where the CCW is good, but open carry is banned by local ordinance. Some other non-resident is free to challenge the Denver ban on open carry. Colorado residents can carry on their Colorado CCW permits in Denver. Only non-residents are seriously screwed and only then in Denver. Someone posted that en banc and cert will be sought, but I am not sure what the theory of any such petition will be. Can't wait to read it.

The court's rejection of the P&I Clause argument is disappointing and is very bad precedent for challenges to similar bans on non-resident issuance. But that was always a tough argument and even that decision has limited impact. Currently, only a few states like Colorado and South Carolina both ban the issuance of CCW permits to out of state residents AND refuse to accord reciprocity recognition to CCW permits issued to non-residents by other states. The sky has not fallen. Yet, at least not yet.

Last edited by esqappellate; February 24, 2013 at 12:25 PM.
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Old February 24, 2013, 12:35 PM   #16
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Quote:
Originally Posted by smoking357
Folks, don't think this case presents us with a hero who was felled by a broken system. This case was bungled from its inception, and the plaintiffs played a dangerous game of brinksmanship with our rights....
Thank you for your opinion. But who are you, and why should we pay attention to your opinion?
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Old February 24, 2013, 01:12 PM   #17
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Quote:
But who are you, and why should we pay attention to your opinion?
I don't know who he is...and I just evaluate opinions, not the people who form them.

And his opinion seems right.
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Old February 24, 2013, 01:22 PM   #18
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Quote:
Thank you for your opinion. But who are you, and why should we pay attention to your opinion?
Frank,
I have no idea who this individual is, either. But what's the point of having a means to post anonymously under a screen name if the ideas presented are not assessed on their merits, but rather than on the pedigree of the writer? The clear implication is that the person is unqualified to make assertions on this forum. Were that true, I and many others would have to log off and not return.

I wouldn't be surprised if this writer is yet another screen-name persona of the infuriating "Fabio Gets Goosed", an infamous member of Calguns who is often as correct as he is useless.

Having followed this case closely, I think the court did send up flares at orals indicating that they were being forced into a corner WRT the outcome. These warnings were ignored. That said, there may well be a wider strategy here of which I am unaware, but I am doubtful. The best we might hope for is an intervening decision elsewhere that's either controlling or persuasive, and that directly undermines the reasoning upon which this court relied.

With much respect,
Christopher
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Old February 24, 2013, 01:53 PM   #19
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As far as posting anonymously, I haven't asked Frank about this, but I don't think Frank is asking for the person's name. I do think he's trying to assess this person's qualifications. Given the length and depth of detail in smoking357's post, I'd call that reasonable.

I could wander up to the Handloading forum and offer opinions on proper loads all day long. Chances are, my recipes would get someone's fingers blown off, though. Everyone is entitled to an opinion, but not all opinions are equal.
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Old February 24, 2013, 01:55 PM   #20
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But here's something else to consider-The cases in NY and CA(with Alan Gura) are also approaching their cases the same way. Both states ban open carry, but do provide for CCWs. Denver(as opposed to CO) is no different than CA or NY. Gura is not directly attacking the OC bans of either state, but is making the case that those states have already made up their mind and they prefer CCW over OC. So is Alan Gura's strategy flawed as in this case, or was it possibly just a mistake along the way, or was it the court only answering the questions they wanted to answer?
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Old February 24, 2013, 02:32 PM   #21
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Both really. The decision not to challenge the Denver ordinance in district court meant that the court could sharply limit the case to concealed carry and the P&I argument. That may have been a miscalculation, but hindsight is always 20/20. The court doesn't and shouldn't address issues not preserved by the parties. The best path, now being followed by Gura and others, is to argue that the state can't ban both modes of carry and have the court strike down whatever method the state has adopted that imposes the ban on both. The remand is then for the state to fix it any way they want to with new legislation, ala Moore. Here, Gray could have challenged both the State law and the Denver ordinance. As it turns out, he would have lost on the state law, but might have succeeded in striking down Denver's ban on OC. Not a great result but better than the one they got. I am most distressed in this case not by the 2A ruling (which I see as is quite limited in its impact), but by the P&I ruling. I had hoped that might go the other way.
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Old February 24, 2013, 02:39 PM   #22
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But during orals Peterson's attorney stated numerous times that they just wanted to be able to carry in some form in Denver. Did they write something in the briefs that blew the whole thing up?

Also the P & I ruling stinks IMO but I guess that was also limited to CCW?
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Old February 24, 2013, 02:45 PM   #23
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the court of appeals stated:

Peterson has repeatedly expressed, however, that he is not challenging the Denver ordinance. After Suthers advocated for the constitutionality of the Denver ordinance in his motion for summary judgment, Peterson clarified that he was not arguing that the ordinance is unconstitutional, but that it is Colorado’s “refusal to allow Plaintiff to obtain a CHL that is unconstitutional.” Claiming that Suthers was attempting a “back door attack of Denver’s ban on open carry of firearms,” Peterson stated that “this case is not the proper vehicle for his attack.”
In light of Peterson’s explicit statement that “this case is not the proper vehicle” for an attack on the validity of the Denver ordinance, Peterson has clearly waived any such challenge. See United States v. Zubia-Torres, 550 F.3d 1202, 1206 (10th Cir. 2008) (an issue is waived, rather than forfeited, when a party “deliberately considered the unraised issue and made an intentional decision to forego it”). Because the district court accepted Peterson’s formulation of the case in ruling on the parties’ cross-motions for summary judgment, Peterson cannot be heard to complain of any alleged error he himself invited. See United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005) (“[T]he invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt.”). We see no reason that a plaintiff could not challenge both the statute and the ordinance in the same suit, but Peterson has made a conscious decision not to challenge the constitutionality of the Denver ordinance.

As a general proposition, all of this is sound law. Regardless of what you allege in the complaint, if you disclaim a claim in the pleadings or on summary judgment, the courts can and should hold you to it on grounds of waiver. If the district court rules on that basis, you will not be permitted to challenge on appeal that ruling on a ground that you waived.

Yes, the P&I ruling was on a challenge to the residency requirement of Colo. law.
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Old February 24, 2013, 03:04 PM   #24
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Quote:
Originally Posted by maestro pistolero
Frank,
I have no idea who this individual is, either. But what's the point of having a means to post anonymously under a screen name if the ideas presented are not assessed on their merits, but rather than on the pedigree of the writer...
I'm aware of that point of view and don't fully share it. The fact is that not all opinions are equal. The opinion of my doctor about my health deserves much more attention than that of my mechanic, and if that weren't the case I'd need a new doctor.

It's a matter of credibility. There's a difference between the opinion of someone who has appropriate education and experience in the subject matter to which the opinion relates and that of someone lacking appropriate qualifications. In court, only someone whose qualifications have been established may testify as to an opinion, and there's a reason for that.

I know something of the qualifications and track record of Alan Gura. I know something of the qualifications and track record of Alan Gottlieb and the Second Amendment Foundation.

Furthermore, smoking357's opinion is not supported by citation or reference to objective evidence, but rather by conjecture and assumption. That might be one thing when the person stating the opinion has established his credibility and qualification. It's another thing when the person is an anonymous denizen of cyberspace without established reputation. In effect, the merits of smoking357's opinion can't be assessed -- only whether it "sounds good."
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Old February 24, 2013, 03:18 PM   #25
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Another thing to consider.

When I make a statement, of supposed fact, and I don't back it up with citations, everyone can easily conclude that this is just my opinion. But I'm not anonymous. I post using my name. Therefore, my posting history comes into the equation. And that is the basis for any reputation I might have in my opinion.

An anonymous person with no history, has no credibility at all, most especially when making assertions without any citations provided. The least someone can do, is to back-up their opinions or assertions with citations to the facts.

This is why we make such a big deal of members who come here with their opinions and no facts to back up that opinion. It's a double edged sword that cuts both ways.

Smoking357? Remember this when posting here. The Firing Line demands a higher threshold than most other forums on the net. This is by intention. We are a hard audience.
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