Kolbe v O'Malley Motion For Summary Judgement Filed 17 March 2014

[mxrider]

Are there additional filings expected from either side at this point? The last one I see is on 6/2/14- "Plaintiffs' reply to Defendants' Opposition to Plaintiffs' Motion to Exclude" according to:

http://michellawyers.com/kolbe-v-omalley/

 

[dblas]

Nope, no additional filings expected, just the hearing on the motions on July 22.

We hope to have an update for the masses following the hearing.

 

[backhome426]

What will the hearings on 7/22 decide?

 

[dblas]

What will the hearings on 7/22 decide?

All of the motions submitted by both sides will be heard and the judge will decide what will happen to them, at which point we then wait on a decision in the case. Regardless of the finding in this court, both sides have said they will appeal to the 4th Circuit.

 

[rockstarr]

so another wards all of this was just a big waste of time since it will be appealed anyway?

 

[swinokur]

It's not a waste because that's the process. Lose at District Court, appeal to the 4CA. Can't do the second step without the first.

 

[rockstarr]

right, I understand. I was sort of just thinking out loud

 

[fabsroman]

right, I understand. I was sort of just thinking out loud

If the loser does not appeal this decision, that would be incredible. This is generally how it goes on matters like this. If this was a case where there was merely a disagreement that needed to be ironed out, it is very possible that there would be no appeal. However, when it is a constitutional question, you can bet it will be appealed as far as it can go. Look at the Shall Issue case. We won at the District Court level with Judge Legg's opinion, lost at the 4th Circuit level, and then the Supreme Court of the United States of America declined to hear the case or it would have gone as far as it could have gone in the appeals process. Actually, it did goes as far as possible, it is just that SCOTUS declined the writ of certiorari.

None of this is a waste, it just requires patience and determination.

 

[rockstarr]

If the loser does not appeal this decision, that would be incredible. This is generally how it goes on matters like this. If this was a case where there was merely a disagreement that needed to be ironed out, it is very possible that there would be no appeal. However, when it is a constitutional question, you can bet it will be appealed as far as it can go. Look at the Shall Issue case. We won at the District Court level with Judge Legg's opinion, lost at the 4th Circuit level, and then the Supreme Court of the United States of America declined to hear the case or it would have gone as far as it could have gone in the appeals process. Actually, it did goes as far as possible, it is just that SCOTUS declined the writ of certiorari.

None of this is a waste, it just requires patience and determination.

do you think this same process and outcome will be repeated with this?

 

[fabsroman]

do you think this same process and outcome will be repeated with this?

The process will be repeated. Not sure whether SCOTUS will take this case, but I think it is a good one for SCOTUS to take since it deals with a lot of issues (e.g., licensing, banning).

Not sure on what the outcome will be either, but hoping that it will be in our favor as it should be. Government has gotten out of control in the past decade in infringing upon our rights, and I am not just talking about the 2nd Amendment. I think SCOTUS is starting to realize this along with the lower courts and the American people are starting to get to the point where enough is enough.

If this was a slam dunk on either side, it would not be in Court right now. With that said, I think the testimony of the MSP "Captain" (cannot remember his title) is pretty damning on this matter for the antis. With that said, I have not read through all the depositions, motions, etc. to actually sit down and give you a complete analysis, and like I tell my clients, when we are in Court only the Judge knows what the heck is going to happen. Seen what I thought was a good case fall apart because we did not know something that the other side did (i.e., our client was lying). Simply put, I think we have a pretty good chance with this case because of Heller and because it is an infringement. The Shall Issue case was not something covered by Heller, and essentially would expand Heller beyond keeping and bearing arms in one's home.

 

[fabsroman]

so another wards all of this was just a big waste of time since it will be appealed anyway?

No, this is not a waste of time. This is how Court proceedings go. An appeal is usually based upon the issues preserved for appeal in the lower Court (i.e., these proceedings), so if this is not done right, then the appeal would be a disaster too.

I believe the hearing on the 22nd pertains to Motions for Summary Judgment, which if granted, ends the case without a trial. A Motion for Summary Judgment is filed based upon the facts in the case, none of which are in dispute, and the law that supports ruling one way or another based upon the facts that are indisputed. Now, if there is a dispute of fact regarding something important, then a Motion for Summary Judgment cannot be granted and the matter must go to trial so the trier of fact can weigh the fact/facts that is/are disputed.

 

[dblas]

Two more items of reading info for those interested.

The state's Supplemental Authority re Colorado Outfitters Assoc. v. Hickenlooper

http://michellawyers.com/wp-content...olorado-Outfitters-Assoc.-v.-Hickenlooper.pdf

Trying to support their motion of summary judgement on the magazine capacity issue based on the ruling from the US District Court of Colorado.

Our Supplemental Authority re McCullen v. Coakley

http://michellawyers.com/wp-content...lemental-Authority-re-McCullen-v.-Coakley.pdf

Stating that per The Supreme Court, intermediate scrutiny, is a non starter. Also note the mention of the new "Approved" long guns list memorandum that came out July 9.

See you all on Tuesday, and remember be on your best behavior for those that come on out. That is all we ask, nothing more, nothing less.

 

[jpo183]

Every case has law and facts to it. Sometimes, there is a dispute as to the law, sometimes there is a dispute as to facts, and sometimes there is a dispute to both.

When there is no dispute regarding the facts, the case is ripe for a Motion for Summary Judgment to be granted. A Motion for Summary Judgment can only be granted when there is no material dispute regarding the facts and the Motion is solely based upon the application of the undisputed facts to the law. This is where the Judge can determine the case without the case going to the fact finder.

When there is a dispute regarding a material fact, a Motion for Summary Judgment cannot be granted. For example, disputes of fact could be whether a verbal promise was made, whether something was delivered at a certain time, etc. For me to even attempt to come up with how many disputed facts there could be would take me a lifetime. Simply put, when a case goes to trial (i.e., the fact finder) it is either because the attorneys did a piss poor job with discovery and the Motion for Summary Judgment, or there is actually a dispute regarding a material fact or several material facts.

Material fact that appears to be in dispute here is whether the state actually looked into the benefits of passing this law or whether it was all a horse and pony show to garner publicity and votes for O'Malley. If there is an argument regarding material facts, the Motion for Summary Judgment should not be granted and this should be going to trial.

Fantastic explanation of what I was looking at. Cookies for you mr accountant/lawyer.

I am bolding what my next statement is based on.

Isn't this speculation and a very weak fact to argue against? Arguing this from the other side this it would seem easy to argue that of course gun laws benefit public safety and the legislature did its due diligence through staff research, etc to form an opinion. I would also argue (not sure if this is right but taking it at first glance) that "expert testimony or any testimony" is not relevant to how or what a law does or does not do.

Does that make sense?

The legislature based it's "reasoning" on input from "experts" on both sides. Dr. Webster got free rein to answer all of his questions, Capt McCulley got shut down before he could answer a very basic yet important question and then there after.

So, if you read the depositions of Dr Webster as well as Dr Koper, you will clearly see that not only did Dr Koper state that none of these laws would be effective in his deposition, but that he did basically an if/then transition from what he had studied, to what he surmised in his book.

Further, you would have read that Dr. Webster based all of his "research" on Dr Koper's book and publishings, and not doing any of his own research.

So, have you read any of the documents posted in the Kolbe v O'Malley lawsuit thread?

I read the information pertaining to what you are speaking of. But in the words of Hilary Clinton

"What difference does it make".

Again arguing from the other side. There are MANY laws that have been passed into law that are not based on actual fact. This does not mean that the law is not the law. Are we now going to over turn a law just because an opponent of the law says there is no "fact" behind the law.

It just seems like a weak argument but again that brief is really really long and I did not read the entire things, just the snippets. I will reread just to make sure I am not missing anything. It just seems that arguing that a law was passed based on bad "facts" is not a compelling argument. IANAL

We are not talking about facts of evidence as Fab stated "this guy said x" or "did x" this is arguing that "expert" testimony was bad and not correct.

I would argue that any law can be passed whether there is "fact" or not, by the will of the people (legislators).

Prohibition, is a great example that comes to mind.

That is why the level of scrutiny matters.

Correct however here is why I think the lowers should have been banned completely which would strengthen the argument.

In the instant case, there can be no doubt that the challenged laws prohibit conduct protected by the Second Amendment as it was historically understood. Plaintiffs are prohibited from acquiring firearms commonly possessed for lawful purposes, which is precisely what the Supreme Court found to be protected by the Second Amendment in Heller

page 26 of the brief.

Since HBARS and lowers are now completely legal, the State can argue they have not infringed on the "firearms commonly possessed" because the difference between a non hbar ar and a regular ar are so small and even gray, that it could be argued irrelevant.

Its almost like the argument is saying ok fine if you through out the "fact" side of the argument you must use Heller to apply "common" to what is now "expertly testified" as a common firearms. This is why I feel that the legalization of the HBAR and Lower is a bad thing for this case. Now "common" is not banned, only a certain flavor. Remember the argument of common is toward the AR and NOT the AK. So the AK could be technically "banned" since it has not been proven as common.

The same goes for the magazine argument. What is common? 10, 15, 30, 7? From this argument we could then call up the law that has banned grain alcohol (the high high proof stuff) as a bad law based on this argument. They did not ban ALL alcohol, but only the kind that is extremely high proof. Same thing with mags. Remember the state isn't banning possession of normal cap mags, but the SALE. Completely different.

Again my previous statement: we did not ban ice cream, only choclate ice cream.

Again not agreeing with my statement just arguing from the other side.

I hope I am way wrong but it just seems like a weak argument but IANAL only a common soul that understands english.



EDIT: The part of the argument saying laws must be derived from fact or information that is NOT solely for government interest is going to be a tough sell.

Thus, to be relevant in the strict scrutiny analysis, the evidence must be proven to have
been before Congress prior to enactment of the racial classification. Although these
statistical studies predate the present reauthorization of section 1207 in 2002, their
relevance is unclear because it is uncertain whether they were ever before Congress in
relation to section 1207. Without a finding that these studies were put before Congress
prior to the date of the present reauthorization in relation to section 1207 and to ground
its enactment, it was error for the district court to rely on the studies.

This could be framed to argue almost ALL laws should not have been passed. Look at Obama Care it is on record saying "we need to pass it before we know what is in it".

Actually, we are arguing facts, and there is a disagreement on the facts at hand by both sides. So we will find out on Tuesday if that disagreement is large enough to warrant a trial. That is what this hearing is about on Tuesday.

Correct me if I am wrong, but the case is to argue that someone argued facts that were not technically "scientific facts" but they still presented facts prior to legislation being passed.

Wouldn't the argument then be that ANY PUBLIC testimony or "expert" testimony could be challenged in court based on "proven facts"?


edit again: Even if the court tosses out Webster and Koper's testimony, you still have MSP saying it is a good thing. Couldn't the court just say, ok they had one bad witness but the other is still valid?

 

[dblas]

Correct me if I am wrong, but the case is to argue that someone argued facts that were not technically "scientific facts" but they still presented facts prior to legislation being passed.

Wouldn't the argument then be that ANY PUBLIC testimony or "expert" testimony could be challenged in court based on "proven facts"?


edit again: Even if the court tosses out Webster and Koper's testimony, you still have MSP saying it is a good thing. Couldn't the court just say, ok they had one bad witness but the other is still valid?

Yes, but only for the part of the lawsuit that concerns the experts, and no MSP never said it was a good thing in the committee hearings for the joint committee, the MSP representative got shut down by the Governors representative.

What MSP says after the fact is a completely different argument, and another part of the lawsuit.

There are many facets to this lawsuit, it is not as cut and dry as you make it out.

 

[Haides]

Correct however here is why I think the lowers should have been banned completely which would strengthen the argument.

page 26 of the brief.

Since HBARS and lowers are now completely legal, the State can argue they have not infringed on the "firearms commonly possessed" because the difference between a non hbar ar and a regular ar are so small and even gray, that it could be argued irrelevant.

If the State concedes that there is no difference between regular AR's and HBAR's, then they have no logically defensible argument for banning one and exempting another.

 

[Inigoes]

If the State concedes that there is no difference between regular AR's and HBAR's, then they have no logically defensible argument for banning one and exempting another.

Especially, if the AR15 is considered a copy of the HBAR

 

[Mr H]

"What difference does it make".

I can tell you from personal experience that Daniel Webster is nothing, no one, useless...

He cannot defend his positions when even the slightest challenge is presented, and contradicts himself as arguments suit (and thinks he can get away with it).

He is a connected shill, but is very bad at his job.

 

[EL1227]

FIFY

I can tell you from personal experience that Daniel Webster is nothing, no one, useless...

He cannot defend his positions when even the slightest challenge is presented, and contradicts himself as arguments suit (and thinks he can get away with it).

He is a connected and highly PAID shill, but is very bad at his job.

If it weren't for Bloomberg's $B largess flowing into the coffers of JHU's BLOOMBERG School of Public Health, Professor Webster would be out of a job.

 

[Brooklyn]

If the State concedes that there is no difference between regular AR's and HBAR's, then they have no logically defensible argument for banning one and exempting another.

This. The court can allow a ban of firearms based on color but they can't claim it makes any sense. That's a lot better than the claim that it does make sense. Like it or not a total ban is easier to justify.. such a ban still be struck but not for failing rational basis ..

Its amazing that even good news becomes bad news around here..

 

[jpo183]

If the State concedes that there is no difference between regular AR's and HBAR's, then they have no logically defensible argument for banning one and exempting another.

But they will not concede that, hence the stripped lower decision.