Jackson v. City & County of San Francisco

esqappellate · Dec 15, 2014

Elliotte said:
They argued that, but they also argued that they take the case for a full hearing so that the court can smack down the 2A-Two-Step that the lower courts have used to get around Heller & McDonald.

AS usual, Paul Clement writes a dynamite cert petition. I am not particularly optimistic about the case, but Clement is certainly correct in his analysis. It just may not strike the Court as important enough of a case to grant plenary review. A summary, per curiam. reversal is possible, though unlikely. Those get directed to the 9th Circuit on a fairly regular basis. See, e.g., Ryan v. Schad 133 S.Ct. 2548 U.S.,2013. I would be happy with that.

press1280 · Apr 1, 2015

Distributed for April 17th Conference at SCOTUS: http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-704.htm

Jackson's reply brief: http://michellawyers.com/wp-content...-San-Francisco_Reply-Brief-for-Petitioner.pdf

Maestro Pistolero · Apr 1, 2015

esqappellate said:
AS usual, Paul Clement writes a dynamite cert petition. I am not particularly optimistic about the case, but Clement is certainly correct in his analysis. It just may not strike the Court as important enough of a case to grant plenary review. A summary, per curiam. reversal is possible, though unlikely. Those get directed to the 9th Circuit on a fairly regular basis. See, e.g., Ryan v. Schad 133 S.Ct. 2548 U.S.,2013. I would be happy with that.

I imagine that when Paul Clement is educating the court about cases they must eventually decide, it must carry weight past far past any cert denial.

kcbrown · Apr 2, 2015

press1280 said:
Distributed for April 17th Conference at SCOTUS: http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-704.htm

Jackson's reply brief: http://michellawyers.com/wp-content...-San-Francisco_Reply-Brief-for-Petitioner.pdf

What an excellent brief.

Unfortunately, it won't do any good. SCOTUS will deny cert.

MDFF2008 · Apr 2, 2015

kcbrown said:
What an excellent brief.

Unfortunately, it won't do any good. SCOTUS will deny cert.

I'll be disappointed if they deny, this case seems to strike at the core of what they decided in Heller.

krucam · Apr 2, 2015

gprimr1 said:
I'll be disappointed if they deny, this case seems to strike at the core of what they decided in Heller.

In both the Petition and their Reply Brief, they've also in no small manner called out the 2A 2-Step and its misuse by the Courts. I'd love to see the Court provide guidance to the lower courts on this misuse.

Maestro Pistolero · Apr 2, 2015

If the court cannot, for WHATEVER reason step up and repudiate the 9th SCA's obvious and brazen disdain for the clear holding in Heller then KC is right and the justice system is irreparably broken. It just doesn't get any clearer.

. . . It just may not strike the Court as important enough of a case to grant plenary review . . .

What could possibly be more important to SCOTUS than the blatant and willful disregard of a fundamental, incorporated and enumerated civil right in the largest circuit in the land? There is ZERO room for hair-splitting here. The 9th is doing exactly what Heller said it could not do. What the hell good is a landmark decision that can be directly contravened by an inferior court without consequence? I am so ashamed of the ninth circuit.

wolfwood · Apr 2, 2015

esqappellate said:
AS usual, Paul Clement writes a dynamite cert petition. I am not particularly optimistic about the case, but Clement is certainly correct in his analysis. It just may not strike the Court as important enough of a case to grant plenary review. A summary, per curiam. reversal is possible, though unlikely. Those get directed to the 9th Circuit on a fairly regular basis. See, e.g., Ryan v. Schad 133 S.Ct. 2548 U.S.,2013. I would be happy with that.

So the Ninth Circuit avoided the other preliminary injunction factors because it found Jackson lost on the merits. Jackson was a PI appeal brought 3.5 years into litigation. Let's say that the Supreme Court takes this and reversed the Ninth. What would happen then? Would the Ninth then issue a new opinion which ruled on whether the other three Winters factors were satisfied before deciding whether a PI was approriate?

esqappellate · Apr 2, 2015

wolfwood said:
So the Ninth Circuit avoided the other preliminary injunction factors because it found Jackson lost on the merits. Jackson was a PI appeal brought 3.5 years into litigation. Let's say that the Supreme Court takes this and reversed the Ninth. What would happen then? Would the Ninth then issue a new opinion which ruled on whether the other three Winters factors were satisfied before deciding whether a PI was approriate?

It depends entirely on what the SCT says. If the SCT says that the 9th screwed up in its reading of Heller as a matter of law, even the 9th Circuit would have a hard time affirming the district court's ruling on a PI appeal.

Maestro Pistolero · Apr 2, 2015

There is zero room for hair-splitting here. With astounding hubris the 9th CA has specifically contravened in the finest detail the holding in Heller. If SCOTUS doesn't fix this I have no more respect for SCOTUS than I do for the 9th circuit.

If the 9th's intent were to make a mockery of SCOTUS and Heller they would not need to change a single word of the ruling.

press1280 · Apr 4, 2015

It's not on SCOTUSBLOG's "Cases to Watch". Not sure how often a case slips by their radar and gets cert, especially when there's no similar case simultaneously at SCOTUS.

Elliotte · Apr 5, 2015

I was surprised it wasn't on their site, I've looked a couple of times. Usually they're a good reference.

Kharn · Apr 5, 2015

press1280 said:
It's not on SCOTUSBLOG's "Cases to Watch". Not sure how often a case slips by their radar and gets cert, especially when there's no similar case simultaneously at SCOTUS.

They still have two weeks to go, but a non-prisoner appeal unmentioned as a petition of the day has very long odds.

rlc2 · Apr 10, 2015

interesting comment on Scotusblog

Kharn said:
They still have two weeks to go, but a non-prisoner appeal unmentioned as a petition of the day has very long odds.

I'm new to Scotusblog, but find it invaluable, especially the Plain English tab.

Unfortunately it seems theres not a lot of commentary there on 2A cases until something actually gets active at SCOTUS. And given how much else is going on, that makes sense.

But I found your comment, Kharn interesting as inside baseball, and wonder if its partly due to the denial of Scotusblog credentials. Coincidentally, their star reporter, Lyle Dennison, just got his own blog, and got Scotusblog credentialed, just a day before SCOTUS issued its updated policy on credentials. Scotusblog is still denied, due to conflict of interest between owner, who argues before the court, and that delays the reporting a bit, I imagine.

I suppose its possible Mr Dennison will post something on his own, before it hits Scotusblog. http://lyldenlawnews.com/

More on the background on credentials:
http://www.abajournal.com/news/arti...urt_press_credentials_under_new_policy_what_a

More on Mr Dennison, who seems like a really interesting gent, here:
http://www.washingtonpost.com/blogs...are-still-stands-tomorrow-probably-from-lyle/

rlc2 · Apr 10, 2015

SCOTUSBLOG Petitions We're Watching

Kharn said:
They still have two weeks to go, but a non-prisoner appeal unmentioned as a petition of the day has very long odds.

Is this place in Scotusblog you guys are talking about?

http://www.scotusblog.com/case-files/petitions-were-watching/

rlc2 · Apr 10, 2015

Esqappellate- a question for you on cert

esqappellate said:
AS usual, Paul Clement writes a dynamite cert petition. I am not particularly optimistic about the case, but Clement is certainly correct in his analysis. It just may not strike the Court as important enough of a case to grant plenary review. A summary, per curiam. reversal is possible, though unlikely. Those get directed to the 9th Circuit on a fairly regular basis. See, e.g., Ryan v. Schad 133 S.Ct. 2548 U.S.,2013. I would be happy with that.

Can I ask a sort of hypothetical question to see, Esqappellate, if understand what you have said before about what SCOTUS looks for to grant cert-
and see if my laymans logic is applied more or less correctly here, on Jackson and Clements chances?

I'm going from memory on something you wrote on what SCOTUS seems to like in general for taking something on for cert, so pls correct if I got it wrong.

1. "square contradiction" between state and federal law -

IANAL to evaluate this, but per Clements arguments in the petition, as a lower court blatantly ignoring specific guidance in Heller, its a clear contradiction between this city and SCOTUS in binding case law in Heller, correct?

2. "Enough districts have weighed in, to say that the issue has percolated up, with a clear split" to be decided, (no matter which way the missing ones go).

The Ninth is the last, and Jackson is all about the 2 step. That will apply in Peruta, too, so there is that indirect but important influence to come....

3. A case of state vs feds, ie US Solicitor General, or State AG...
Not exactly the State of CA- just one big ultra-liberal city- the most liberal on West Coast. But hey, Kamala Harris is from there, right?

4. Represented by one of the very small elite of appellate practioners.
Paul Clements is the peak of that pyramid, I inferred from your comments.

5. Something significant to warrant ruling on.
Again, I dont know how to evaluate- but if all the "anti-gun" cases lately have one thing in common its the fuzzy scrutiny and government interest definitions. Judge Boggs pointed that out in Tyler, and Clements says same.

Is that why you are not confident this will be taken up Esqappellate?
Is Jackson just not important, or too narrow enough, despite 1, 2, and 4?

Thank you for your opinion, if you can and I am mindful of your signature line, and position as someone who is a gracious gentleman, a paragon of virtue and clarity...

(is there an icon for suckups here?...

rlc2 · Apr 10, 2015

now for us tin foil hat wearers, you know who you are...

....that brings us to insider baseball speculation on whats going on-

Drake dragged on and I recall one tea-leaf reading was it was denied because the pro-2A four, could not count on Justice Kennedy, who had undergone a change in personal conscience, post Newtown, to make up the Heller five, again, on the merits of the law in Drake.

I read that Justice Breyers fondness for the 2 step interest balancing was ruled inapplicable for the core in Heller, but I read somewhere that Justice Kennedy was a fan of intermediate vs strict scrutiny, and he is the admin Justice for the 9th, correct. What exactly does that entail?

Would he be the link to how SCOTUS currently feels about things, to the 9th, indirectly, on the gray area in that particular area?

Never mind the merits, and narrowness, per my post above...

Could the vote prediction be just too squishy for Scalia and others to risk a bad outcome, and its better to just let cert slide, again?

Strategy-wise, would it be worth SCOTUS taking a pass on Jackson, for something pending, to clarify the 2 step vagueness better, and broader,
for everyone?

rlc2 · Apr 10, 2015

kc here is more meat for your game theory...

kcbrown said:
What an excellent brief.

Unfortunately, it won't do any good. SCOTUS will deny cert.

Ok, sorry for carpet bombing this thread, but forgive the noob- searching to understand what the heck a GVR is, and a Per Curiam, and one thing and another you never know where google will lead you... :lol:

kc, check this out- its a little old but gives some "veddy interesting" slants on decisions to both validate your game theory based on political affiliation, and insights on other factors that might also affect outcomes- this is on cert, in particular, which is the topic at hand, so I plead:

RELEVANT, not OT!

Besides what else can we talk about while waiting on edge of chair ....

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1476537

rlc2 · Apr 10, 2015

Jackson Amicus by FPC et al

esqappellate said:
AS usual, Paul Clement writes a dynamite cert petition. I am not particularly optimistic about the case, but Clement is certainly correct in his analysis. It just may not strike the Court as important enough of a case to grant plenary review. A summary, per curiam. reversal is possible, though unlikely. Those get directed to the 9th Circuit on a fairly regular basis. See, e.g., Ryan v. Schad 133 S.Ct. 2548 U.S.,2013. I would be happy with that.

PS: to that plenary review point- here is a quote from FPCs counsel, Benbrook, pg 16, in their Amicus to Jackson

" This all amounts to the remarkably odd circumstance
where the Heller and McDonald minority
opinions now effectively control the course
of Second Amendment litigation in the lower
courts. One commentator has gone so far as to declare
victory for Justice Breyer."

brief in pdf here:
https://www.firearmspolicy.org/wp-content/uploads/2015/01/14-704-Jackson-v-SF-amicus-2015-1-15.pdf

esqappellate · Apr 10, 2015

rlc2 said:
Ok, sorry for carpet bombing this thread, but forgive the noob- searching to understand what the heck a GVR is, and a Per Curiam, and one thing and another you never know where google will lead you...

kc, check this out- its a little old but gives some "veddy interesting" slants on decisions to both validate your game theory based on political affiliation, and insights on other factors that might also affect outcomes- this is on cert, in particular, which is the topic at hand, so I plead:

RELEVANT, not OT!

Besides what else can we talk about while waiting on edge of chair ....

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1476537

A GVR is a decision of the SCT that Grants certiorari (thereby taking jurisdiction), Vacates the decision below, thereby depriving that decision of any value as precedent and Remands the case to the lower court for further action, usually citing a the court's decision in another case. This GVR is usually used where the Court has issued a decision this term and there is an argument that the lower court decision being GVRed is inconsistent. Basically, it is the Court's way of telling the lower court to take another look. "Per Curiam" means simply "by the court" -- it is not a signed opinion or authored by any particular justice. Unusually unanimous and is often used with summary reversal. Summary reversal in a per curiam opinion is a real slap, essentially telling the lower court that it got the case so hopelessly wrong as to be unworthy of the Court's time to grant plenary review and consider the merits more fully.

Jackson v. City & County of San Francisco

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