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Old July 29, 2014, 05:29 PM   #76
Davey
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Quote:
They will include training/qualification requirements (a la Chicago)
Not entirely accurate. Chicago has zero say in who or how carry licenses are issued.
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Old July 29, 2014, 07:36 PM   #77
Brian Pfleuger
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I'm not speaking only/specifically about "carry" permits or even current statutes. I'm pointing out examples of how it's been done before and how I expect DC to do it. NY State and Chicago, among other places, all have examples that DC can follow. It doesn't even matter if they've been struck down. Take out the sentence that was struck and add two new ones, start the clock all over again.
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Old July 29, 2014, 10:43 PM   #78
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The article linked above doesn't say which federal judge issued the stay. Was it Scullin? I would have thought that unlikely since he could have issued the stay at the same time he released his decision? A judge on the DC CoA? Anyone know?
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Old July 30, 2014, 07:39 AM   #79
Al Norris
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Here is the full text of the stay (document 53):

Quote:
ORDER

In a Memorandum-Decision and Order dated July 24, 2014, this Court concluded that the District of Columbia's total ban on the carrying of handguns in public was unconstitutional; and, therefore, the Court permanently enjoined Defendants from enforcing D.C. Code ยงยง 7-2502(a)(4) and 22-4504(a).

On July 28, 2014, Defendants filed a partially unopposed motion to stay pending appeal or, in the alternative, for 180 days and for immediate administrative stay. See Dkt. No. 52 at 1. In support of this motion, Defendants' counsel advised the Court that he had conferred with Plaintiffs' counsel, "who indicated that [P]laintiffs do not oppose a 90-day stay starting immediately 'pending the city council enacting remedial legislation that complies with constitutional standards.'" See id. at 1-2.

Based on the parties' agreement that an immediate 90-day stay is appropriate to provide the city council with an opportunity to enact appropriate legislation consistent with the Court's ruling,(1) the Court hereby

ORDERS that Defendants' motion for a stay is GRANTED to the extent that the Court's July 24, 2014 Order is stayed nunc pro tunc for 90 days, i.e., until October 22, 2014; and the Court further

ORDERS that Plaintiffs shall file their opposition to Defendants' motion for a stay pending appeal on or before August 4, 2014; and the Court further

ORDERS that Defendants may file a reply in further support of their motion for a stay pending appeal on or before August 11, 2014.(2)

IT IS SO ORDERED.

Dated: July 29, 2014
Syracuse, New York

1
The Court notes that it sees no need to clarify its decision. The only issue before the Court was whether the District of Columbia's complete ban on the carrying of handguns in public was unconstitutional. Thus, the Court's injunction clearly applied only to handguns and not any other type of deadly dangerous weapon.

2
Based on the papers that Defendants have filed in support of their motion for a stay pending appeal, the Court is not convinced that Defendants will be able to demonstrate a likelihood of success on the merits to warrant such a stay. Nonetheless, the Court will provide the parties with an opportunity to present their arguments in full before ruling on this part of Defendants' motion.
The Motion To Stay, can be found at document 52.
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Old July 30, 2014, 08:42 AM   #80
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So, the window for carrying in DC has closed, at least until October 22. At least the clock is ticking.

Who makes such laws in DC? Is it just the city counsel, or would congress be involved?
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Old July 30, 2014, 08:56 AM   #81
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Thanks, Al.

I love this from the DC motion for a stay:

Quote:
The Court should grant this motion because a stay would preserve the
status quo
And the judge determined that the status quo is unconstitutional, yet you are arguing that as a point in your favor? Unbelievable.

Looks like the only thing that Scullin used to grant the motion was that Gura et al. did not oppose a 90 day stay. Not sure why they didn't.
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Old July 30, 2014, 09:31 AM   #82
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Quote:
Originally Posted by csmsss
Looks like the only thing that Scullin used to grant the motion was that Gura et al. did not oppose a 90 day stay. Not sure why they didn't.
Because Gura agreed to the 90-day stay, for the purpose of enacting new laws consistent with the decision. The request for a stay pending appeal is a separate question, and the memorandum specifically sets dates for both sides to submit their positions on that question.

And did you read the footnotes?

Quote:
2
Based on the papers that Defendants have filed in support of their motion for a stay pending appeal, the Court is not convinced that Defendants will be able to demonstrate a likelihood of success on the merits to warrant such a stay. Nonetheless, the Court will provide the parties with an opportunity to present their arguments in full before ruling on this part of Defendants' motion.
I think the District has an uphill fight to show that they are likely to prevail on appeal.
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Old July 30, 2014, 09:31 AM   #83
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Quote:
Who makes such laws in DC? Is it just the city counsel, or would congress be involved?
I'm not entirely sure, but I believe it's both. Congress has the power Constitutionally but delegated it to the City Council is my understanding. As such Congress may get involved any time it wants.
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Old July 30, 2014, 09:47 AM   #84
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We should also recognize that anytime a court strikes down a law, there is almost always a stay granted to preserve the status quo, while the governing body rewrites its law to be compliant with the court order.

DC has two choices here. They can comply with the Court by writing a law (like IL), or they can appeal the decision.

The court has indicated that if they fail to comply, the court doesn't believe they have any merits that the appeals court will reverse on. Hence the footnote #2, which is also an indication that DC will not get its requested 180 stay.

The Judge is telling DC to tread lightly, and go one way or the other.
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Old July 30, 2014, 09:56 AM   #85
motorhead0922
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Quote:
Originally Posted by JimDandy
Congress has the power Constitutionally but delegated it to the City Council is my understanding. As such Congress may get involved any time it wants.
Quote:
Originally Posted by Al Norris
DC has two choices here. They can comply with the Court by writing a law (like IL), or they can appeal the decision.
Bearing in mind that I should be careful what I wish for, I think it would be good for Congress to get involved. With the 90 day clock ticking, DC might have a chance at getting Shall Issue.
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Old July 30, 2014, 10:43 AM   #86
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Quote:
Originally Posted by Al Norris
DC has two choices here. They can comply with the Court by writing a law (like IL), or they can appeal the decision.

The court has indicated that if they fail to comply, the court doesn't believe they have any merits that the appeals court will reverse on. Hence the footnote #2, which is also an indication that DC will not get its requested 180 stay.
Al, keeping in mind that I'm not formally trained in law, my understanding of the stay order is that D.C. has until August 11th to argue that an appeal is warranted and based upon sound legal principles.

If the judge accepts their arguments, they have 180 days- until 20 Jan 2015 or thereabouts- to actually appeal.

If the judge rejects their arguments- which is arguably likely given the strong wording of the decision AND the stay- the 90-day deadline to enact a reasonable carry permit system remains in effect.

Correct?
Quote:
Originally Posted by motorhead0922
Bearing in mind that I should be careful what I wish for, I think it would be good for Congress to get involved. With the 90 day clock ticking, DC might have a chance at getting Shall Issue.
IMHO it's possible that the House could try to enact something, but I predict that it would go nowhere in the Senate. The POTUS has no incentive to act on this issue; if D.C. has to enact a carry system, the political impact will be small and highly localized, and D.C.'s defeat can be blamed on a so-called "activist" judge.
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Last edited by carguychris; July 30, 2014 at 12:34 PM. Reason: reword
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Old July 30, 2014, 11:49 AM   #87
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IMHO it's possible that the House could try to enact something, but I predict that it would go nowhere in the Senate.
That's the most likely end result, but far from guaranteed. Remember the amendment that got the most traction on Manchin-Toomey was national reciprocity.
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Old July 30, 2014, 02:23 PM   #88
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Normally, in a civil case (such as this), the losing party has 30 days to file their NOTICE of Appeal, from the date that the entry of Judgment is made by the court clerk (Rule 4(a)(1)(A)).

Because the defendant (D.C.) is a Federal Agency, they come under Rule 4(a)(B)(ii), which gives them 60 days to file their NOTICE of Appeal.

Time starts the day after the court clerk files the Judgment. The clerk entered the judgment yesterday, the 29th. So today counts as the first day. Therefore, D.C. has until Friday the 26th of Sept. to file their NOTICE of Appeal. The current stay runs out on Oct. 27th. This allows D.C. to request a 30 day extension of time to file.

The Judge deliberately set up this time frame, to account for this. So I don't believe he will grant the additional 90 days (the Motion for 180 days Stay).

However, once the City files their Notice of Appeal, they can then ask the Motions panel of the circuit for a stay, pending appeals, and it will likely be granted.

This is why I say that the City has only two choices. Appeal or re-write their laws.

The other thing to consider, is that according to the judgment, whatever the City provides, it will be a "shall issue" law (however many hoops they impose upon the applicants).
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Old July 30, 2014, 03:36 PM   #89
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Mr. Norris, thank you for your legal beagle info.

let's see, how hard and expensive can they make this (so the average working stiff can't get one). 2 days of class training, in person application submittal only, fairly difficult shooting test. have to shoot the ammo you will carry (some hollow points are $1/shot.

application fees
class fees
shooting fees
cost of gun and rig
cost of ammo
liability insurance?
and on and on.

lived in DC area for 30+ years. what a mess.
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Old July 30, 2014, 04:14 PM   #90
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Quote:
The other thing to consider, is that according to the judgment, whatever the City provides, it will be a "shall issue" law (however many hoops they impose upon the applicants).
Al, I don't see that "shall issue" is required or implied. I must have missed something. Can you explain?
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Old July 30, 2014, 04:17 PM   #91
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likely based on the opinion's reliance on the Peruta case.
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Old August 1, 2014, 10:04 AM   #92
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Al, I don't see that "shall issue" is required or implied. I must have missed something. Can you explain?
Quote:
likely based on the opinion's reliance on the Peruta case.
yes.

In Judge Scullin's injunction it states that on the application to register a firearm the plaintiffs wrote that their purpose was to carry outside the home for self defense. Their initial application was denied based on this. Judge Scullin also cites Peruta vs. San Diego in the injunction. If DC submits a may issue carry scheme it will be undoubtedly rejected by Judge Scullin because carrying outside the home for the purpose of self defense is shall issue.

Several of DC's council members are hell bent on crafting a may issue law like Maryland's in which you need a good and substantial reason to qualify for the carry permit . Only one, council chaiman Phil Mendelson, has cautioned that they need to do their best to get it right the first time. This is why I and others think that DC will appeal the ruling. The majority of them simply refuse to accept the concept of shall issue permitting.
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Old August 1, 2014, 12:46 PM   #93
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I'd love to see them try to circumvent the ruling and get handcuffed on a contempt of court charge, but that will never happen.
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Old August 1, 2014, 01:19 PM   #94
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I think the strongest evidence that the ruling intends to mean shall issue is that, absent a license to carry, it is still legal to carry. The city can only satisfy the ruling if the end result of any new regulation is that non-prohibited persons can carry outside the home. It is the central point of the holding. Standard disqualifiers such as felonies or domestic violence are the exceptions that prove the rule.
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Old August 1, 2014, 02:52 PM   #95
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part of the underlying argument with Peruta was that CA banned open carry, and basically limited concealed carry to nonexistent. opinion said you can pick one or the other as the societally accepted norm (it noted that society has wavered back and forth on this matter, concealed now being more ok than in the past), but you can't pick neither.

in NM open carry is fine as a matter of right (no permit required), but concealed does require a permit (with attendant training and background checks).

so DC can either do open carry, or concealed carry, but not neither.
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Old August 2, 2014, 10:44 AM   #96
maestro pistolero
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Quote:
so DC can either do open carry, or concealed carry, but not neither.
Or they can do both.
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Old August 2, 2014, 02:36 PM   #97
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Quote:
Originally Posted by Maestro Pistolero
Or they can do both.
And they can do both two or three ways:

1. Both allowed w/o permit (Vermont style)
2. Open carry w/o permit, concealed with permit (Ohio/PA style)
3. Both allowed but only with a permit (CT style)\

Am I missing any?
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Old August 3, 2014, 08:22 AM   #98
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The language Scullin used seems to negate any attempt at may-issue, but will DC's new law necessarily have to get Scullin's OK?
IOW-DC adopts a may-issue scheme, does the case stay alive or is it technically mooted and another case must be filed to challenge "good cause" or whatever variation they choose?
Also, if DC appeals can the DC Circuit re-write Scullin's order and bend over backwards to ensure DC wastes more time and plays the Chicago whack-a-mole game?
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Old August 3, 2014, 08:30 AM   #99
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They can also adopt a CC only scheme (I believe they'll do this), probably based on a DC-only permit.
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Old August 3, 2014, 09:00 AM   #100
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Quote:
Originally Posted by press1280
The language Scullin used seems to negate any attempt at may-issue, but will DC's new law necessarily have to get Scullin's OK?
IOW-DC adopts a may-issue scheme, does the case stay alive or is it technically mooted and another case must be filed to challenge "good cause" or whatever variation they choose?
Opening disclaimer: IANAL. Judge Scullin's decision specifically have them 90 days to come up with a new law that satisfies constitutional requirements. That's not a slam dunk that any new law they write will moot the case -- expect the judge to read it, and toss it out if he doesn't think it satisfies the Constitution. May issue should not -- the RKBA is, after all, a "right," and thus should be equally available to all citizens (in good standing).

Quote:
Also, if DC appeals can the DC Circuit re-write Scullin's order and bend over backwards to ensure DC wastes more time and plays the Chicago whack-a-mole game?
I don't think an appeals court can change Scullin's decision. They can affirm it, or they can say he made a mistake and send it back to him either for a re-hearing or just for a rewrite of his own decision.
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