The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools Search this Thread
Old August 2, 2022, 10:48 PM   #1
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
9th circuit sends CA AW ban case ( Miller v Bointa ) back down to lower court .

https://www.youtube.com/watch?v=c88Hpp3zwtQ

So it looks like the CA AW ban is being sent back down to the Federal court where it was already ruled unconstitutional . Interestingly enough , the judge in that case was Judge Benitez and he used the text and tradition approach like the SCOTUS did in Bruan when coming to his decision a year ago .

So the Federal district judge found it unconstitutional using the same standard of review as the SCOTUS just did and the 3 judge panel at the 9th circuit also found it unconstitutional . I believe it then was either excepted en-banc or was appealed to be heard en-banc when they placed it on hold awaiting the outcome of the Bruan case being heard at the SCOTUS at the time .

My question is . since it had already been ruled on at the 9th by a 3 judge panel why does it go all the way back to the district judge ? On the whole I don't care really because judge Benitez's ruling was validated in the recent Bruan case so I suspect the outcome will not be any different . I just don't get why it goes all the way back down . The only reason I can think of is that the state did not make arguments based on text and tradition but rather the now extinct 2 step process .

Also seems likely Banetiz will order a preliminary injunction against the state on enforcing the AW ban which the 9th will over rule but still , I bet the judge does it anyway .
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .

Last edited by Metal god; August 2, 2022 at 11:00 PM.
Metal god is offline  
Old August 2, 2022, 11:06 PM   #2
armoredman
Senior Member
 
Join Date: May 22, 2007
Location: Arizona
Posts: 5,164
I wish him the best dealing with that nest of swamp snakes. Good news.
armoredman is offline  
Old August 3, 2022, 12:08 AM   #3
raimius
Senior Member
 
Join Date: January 27, 2008
Posts: 2,188
Seems like they are just using this to delay things more.
raimius is offline  
Old August 3, 2022, 12:36 AM   #4
rc
Senior Member
 
Join Date: April 28, 2001
Location: CA
Posts: 1,425
I agree they are holding back the tide until they hope to pass national bans that will tie us up in court even longer.
rc is offline  
Old August 3, 2022, 08:58 AM   #5
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 26,494
Before I ascribe nefarious evil motives to the court process (though I think some in it do have them ) one needs to consider the way the system (seems) to work.

It would be logical that since the larger framework of review has been "reset" to a degree by the recent SCOTUS decision, cases, and decisions are being re-examined, and sending them back down to a court level where both sides have an opportunity to restate their arguments (in light of the revised review framework) would be the thing to do.

Tedious and time consuming, perhaps, but it does (hopefully) prevent an appeal based on a "lack of being able to argue...xxxx points".

Legal eagles, correct me if I'm wrong, but isn't this the basic idea??
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old August 3, 2022, 09:06 AM   #6
natman
Senior Member
 
Join Date: June 24, 2008
Posts: 2,542
Quote:
Originally Posted by Metal god View Post
https://www.youtube.com/watch?v=c88Hpp3zwtQ

My question is . since it had already been ruled on at the 9th by a 3 judge panel why does it go all the way back to the district judge ?
To delay the inevitable as long as possible, in the hope that some Hail Mary move happens to change the Supreme Court in the meantime.
__________________
Time Travelers' Wisdom:
Never Do Yesterday What Should Be Done Tomorrow.
If At Last You Do Succeed, Never Try Again.
natman is online now  
Old August 4, 2022, 06:53 AM   #7
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,753
Quote:
Originally Posted by 44 AMP View Post
Before I ascribe nefarious evil motives to the court process (though I think some in it do have them ) one needs to consider the way the system (seems) to work.

It would be logical that since the larger framework of review has been "reset" to a degree by the recent SCOTUS decision, cases, and decisions are being re-examined, and sending them back down to a court level where both sides have an opportunity to restate their arguments (in light of the revised review framework) would be the thing to do.

Tedious and time consuming, perhaps, but it does (hopefully) prevent an appeal based on a "lack of being able to argue...xxxx points".

Legal eagles, correct me if I'm wrong, but isn't this the basic idea??
I'm not going to correct you, because I think you're right. That is the basic idea. Both the trial court and 9th made their rulings under the prior (pre-Bruen) framework. Now the trial court may allow both sides to present their arguments anew, and perhaps introduce new evidence. Then it will analyze the whole thing under the new Bruen test, and it will probably go back to the 9th for review under the new Bruen test.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
Spats McGee is offline  
Old August 20, 2022, 12:49 AM   #8
raimius
Senior Member
 
Join Date: January 27, 2008
Posts: 2,188
The 9th en banc panel also just refused to rehear the Young case (as instructed by SCOTUS), and kicked it down to the district. Clearly, they are just trying to waste time.
I don't know if there is a professional misconduct or fraud, waste, and abuse remedy for such nonsense.
raimius is offline  
Old August 20, 2022, 02:54 AM   #9
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
Here is that Young order , check out the decent . They slam there colleagues for sending it back down to the district court .and not simply ruling on the case based on the recent Bruan case .

http://cdn.ca9.uscourts.gov/datastor...9/12-17808.pdf
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old August 20, 2022, 09:02 AM   #10
csmsss
Senior Member
 
Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
Quote:
I'm not going to correct you, because I think you're right. That is the basic idea. Both the trial court and 9th made their rulings under the prior (pre-Bruen) framework. Now the trial court may allow both sides to present their arguments anew, and perhaps introduce new evidence. Then it will analyze the whole thing under the new Bruen test, and it will probably go back to the 9th for review under the new Bruen test.
Thing is, Judge Benitez used precisely the same framework that SCOTUS did in Bruen in making his initial ruling. There really isn't anything legitimate to litigate here, and there is no legal justification for re-litigating at the district level. The ONLY rationalization for this is that the 9th is playing rope a dope and basically asserting for itself the right of advocacy on behalf of California's unconstitutional arguments and behavior.
csmsss is offline  
Old August 20, 2022, 12:17 PM   #11
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
As much as I want to agree I can’t. The state never argued text and tradition, only rational bases with the 2 step approach the appeals court they knew would ultimately use if they lost at the district level. Which is exactly what happened.

As much as I want this over in our favor . I believe it’s far to allow the state to resubmit there arguments with the Bruan decision in mind . Correct me if I’m wrong but if they did not bring up those arguments at the district level they cannot bring them up on appeal ? This case would literally be over without them getting to make their new arguments based on the new guidelines .
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old August 22, 2022, 01:14 AM   #12
armoredman
Senior Member
 
Join Date: May 22, 2007
Location: Arizona
Posts: 5,164
I am nowhere near a lawyer, but I throw in that I'd heard, (hearsay is such a great legal theory, ain't it?), that by kicking it all the way back down, it stops with Judge Benitez's final ruling, or can the case go all the way back up again?
armoredman is offline  
Old August 22, 2022, 11:39 PM   #13
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
Quote:
I am nowhere near a lawyer, but I throw in that I'd heard, (hearsay is such a great legal theory, ain't it?), that by kicking it all the way back down, it stops with Judge Benitez's final ruling, or can the case go all the way back up again?
Well I believe they vacated his ruling awhile back , then recently vacated there own a-banc ruling and sent it back down . So at this point there is no ruling in place .

FPC will for sure ask for a preliminary injunction to stop any enforcement of the AW ban . I believe the judge will grant the injunction immediately based on the very likelihood FPC will win on the merits based on the Bruan decision . However his ruling will be overturned with in 24hr by the 9th circuit. They will argue not allowing enforcement will allow a flood of AW into CA . The counter argument should be , there are already 10's of thousands in CA now . There will be little to no harm blocking enforcement which will fall on deaf ears .
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old August 25, 2022, 02:09 AM   #14
Limnophile
Senior Member
 
Join Date: March 2, 2015
Location: Issaquah, Washington
Posts: 1,032
@Metal god:
The state never argued text and tradition … .

That's too bad for the tyrannical state. They were already put on notice by the precedential decisions of Heller and McDonald that text, history, and tradition alone were the basis for decision making. Benitez didn't make that up out of thin air. This is a subversive, unconstitutional, straight-up delay tactic.
Limnophile is offline  
Old August 25, 2022, 11:38 AM   #15
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 26,494
Quote:
This is a subversive, unconstitutional, straight-up delay tactic.
I would agree, other than calling it unconstitutional, I don't believe that is an appropriate use of the term.

I don't see this matter of court procedures as a Constitutional issue, but I am willing to listen to specific arguments that it is.
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old August 25, 2022, 12:54 PM   #16
seanc
Senior Member
 
Join Date: December 28, 1998
Posts: 550
Quote:
I don't see this matter of court procedures as a Constitutional issue, but I am willing to listen to specific arguments that it is.
Seems like double-jeopardy to me. The state had their shot, they chose the wrong tactic and now they get a 2nd chance to win.
seanc is offline  
Old August 25, 2022, 01:49 PM   #17
Aguila Blanca
Staff
 
Join Date: September 25, 2008
Location: CONUS
Posts: 17,730
Quote:
Originally Posted by seanc
Seems like double-jeopardy to me. The state had their shot, they chose the wrong tactic and now they get a 2nd chance to win.
You might want to read up on exactly what "double jeopardy" is and means. It means that a person cannot be tried twice for the same offense. A single case going up and down the appeals ladder cannot, by definition, be double jeopardy.
__________________
NRA Life Member / Certified Instructor
NRA Chief RSO / CMP RSO
1911 Certified Armorer
Jeepaholic
Aguila Blanca is offline  
Old August 25, 2022, 06:37 PM   #18
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
When I look at these things I usually use the shoe is on the other foot method of analysis . Meaning if I were in the states position would I want and believe I should get another chance to make my argument based on the new precedent if I had lost . I would if my original strategy was to argue in a manner the appeals court is known to use but now a higher court says I can no longer use .

I see you all’s point because I’m sure the state mentioned text and tradition somewhere in the original arguments . However I’m sure it was in passing and not robustly argued because they knew it was not the standard the appeals courts use and more robustly argued the two step approach instead .
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .

Last edited by Metal god; August 26, 2022 at 10:46 PM.
Metal god is offline  
Old August 26, 2022, 09:31 AM   #19
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
I read there is going to be a hearing on this case on Monday . I can't find any official info on this . Where do I look to find the time and court room this will be held , I'd like to attend ?

EDIT : I found it or better said , someone helped me find it

Quote:
NOTICE of Spreading the Mandate: Appeal Mandate Hearing set for 8/29/2022 09:30 AM in Courtroom 5A before Judge Roger T. Benitez. (no document attached) (gxr) (Entered: 08/24/2022)
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .

Last edited by Metal god; August 26, 2022 at 12:11 PM.
Metal god is offline  
Old August 26, 2022, 09:59 PM   #20
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,118
I just read a case in the Sixth Circuit where the panel raised, on its own, an issue of ineffective counsel in a habeas corpus case. The guy was given a death sentence in the Ohio state courts and the issue was not raised in any state court or in the U.S. district court. After asking for briefs on the issue, the Sixth Circuit panel ruled on the merits without it ever being sent back down.

My point is that the federal appellate courts have a lot of leeway in how they handle things. Usually, they stay within the lines but sometimes they don't. BTW, I agree that counsel was ineffective.

Jones v. Bradshaw
KyJim is offline  
Old August 29, 2022, 01:40 PM   #21
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
Judge denies states request for additional expert witnesses and gives both side 45 days to file new briefs based on text and tradition. He then will give both sides 15 days to rebut each others briefs .

The state was arguing they need to do a deep dive of the historical traditions of the second amendment . To include multiple historians to come and testify . The judge pointed out several times throughout there back and forth how all the traditions of the second amendment can be found is case law and there was no need for additional expert testimony . Judge repeated multiple times he had confidence council could find what they need on there own .

The state kept pushing claiming there has not been enough case law on what "types" of weapons can be owned , carried or restricted only who and if they can be carried . At that point the judge interrupted and said he believed Heller in fact did just that . He then referenced a billy club case he recently had where he did quite a bit of research on what "types" of weapons can be restricted . Bottom line was that the judge did not feel the need for any more testimony at this time . He did leave the door open to that possibility if the states brief was compelling . He then added if experts were needed that he would cross examine the witnesses him self if need be but at this time he did not see a reason to prolong the case . The judge said this case has been going on long enough and both sides have a constitutional right to have this answered sooner then later . Anything else would be an undue delay . He originally was going to give 30 days then 10 but settled on 45/15 .

FWIW the Plaintiff's wanted to enjoin the new law forcing the lawyers to pay the other sides attorney's fee's . Sorry if I did not get the specifics on that right . Regardless , he denied that as well , saying that is a separate issue that needs to be litigated on it's own . Other then that the plaintiff's didn't have much to argue and seemed OK with what the judge was asking for .

The one interesting thing that happened that I don't understand is at the very end the judge stated he was lifting the previous injunction . I'm not sure what that meant since everything had been vacated as far as I know ????
__________________
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old August 30, 2022, 04:32 AM   #22
armoredman
Senior Member
 
Join Date: May 22, 2007
Location: Arizona
Posts: 5,164
October 28th will be D-Day, then.
armoredman is offline  
Old October 16, 2022, 02:51 AM   #23
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
UPDATE

CA files brief in case and for the first time had to use text and tradition as there only argument .
https://storage.courtlistener.com/re...2089.137.0.pdf


They really have some interesting and novel ideas . One that almost seems reasonable .... ok not really but I can see the anti judges on the 9th buying into it . Which is CA does not ban the firearm/AW it is simply regulating and or banning features you can attach to the firearm that do not effect the general or overall function of the firearm .

This is interesting to me because simply ruling against that argument would allow someone to attach anything to there firearm resulting in a dangerous and unusual weapon Yes/no ?

Silencers are regulated , full auto trigger groups are regulated so why can't other features/parts be regulated like collapsible stocks or other muzzle devices ?

I still need to reed through it but can't wait to see Millers Brief .
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old October 16, 2022, 05:08 PM   #24
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
Here is the plaintiffs brief . We now have 15 days for rebuttals .
https://assets.nationbuilder.com/fir...pdf?1665701033
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .
Metal god is offline  
Old October 30, 2022, 12:48 PM   #25
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 6,494
All briefs are in and it’s now in the hands of the judge .

Plaintiff's supplement brief
https://assets.nationbuilder.com/fir...pdf?1666998199

Defendents supplemental brief --- They again HEAVILY rely on the argument that they are only banning accessories and not the basic firearm itself . Which is interesting because for 30 years the state has been trying to ban AW . All of a sudden AW are not the problem it's the little pieces of plastic you can put on them that make them dangerous "OR" unusual hmm thought that term was supposed to be dangerous "AND" unusual ???
https://assets.nationbuilder.com/fir...pdf?1667019830

Judge can rule based on what he has now or can order more hearings . Most believe he will simply rule on the case rather then prolonging the case . Some expect to see a ruling by mid November. At first I’d think that would be longer then is needed . However as before , this judge will carefully consider everything in front of him as well as do his own research. Meaning IMHO it will take a good bit of time to review and research the relevant data and write what will most likely be a very long and detailed opinion. That and other cases he has to consider might push this into Dec or even early next year .

That said several of his current cases actually are on 2nd amendment issues and need very similar research and review so there may be quite a bit of crossover which may speed up if not this case , the others in the future.
__________________
If Jesus had a gun , he'd probably still be alive !

I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again .

Last edited by Metal god; October 30, 2022 at 01:18 PM.
Metal god is offline  
Reply

Thread Tools Search this Thread
Search this Thread:

Advanced Search

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 11:24 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2023, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2021 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Page generated in 0.07068 seconds with 9 queries