9th circuit sends CA AW ban case ( Miller v Bointa ) back down to lower court .

[Metal god]

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 .

[armoredman]

I wish him the best dealing with that nest of swamp snakes. Good news.

[raimius]

Seems like they are just using this to delay things more.

[rc]

I agree they are holding back the tide until they hope to pass national bans that will tie us up in court even longer.

[44 AMP]

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??

[natman]

Originally Posted by Metal god

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.

[Spats McGee]

Originally Posted by 44 AMP

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.

[raimius]

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.

[Metal god]

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

[csmsss]

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.

[Metal god]

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 .

[armoredman]

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?

[Metal god]

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 .

[Limnophile]

@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.

[44 AMP]

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.

[seanc]

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.

[Aguila Blanca]

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.

[Metal god]

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 .

[Metal god]

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

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)

[KyJim]

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

[Metal god]

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 ????
__________________

[armoredman]

October 28th will be D-Day, then.

[Metal god]

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 .

[Metal god]

Here is the plaintiffs brief . We now have 15 days for rebuttals .
https://assets.nationbuilder.com/fir...pdf?1665701033

[Metal god]

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.