Goodbye Sykes v. McGinness

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  • Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    I sure hope Maryland doesn't get to keep may-issue and "good and substantial" because Gansler claimed we can carry long guns.

    That was obviously his goal. No surprise or guessing there. He said as much in his brief.

    But that hope hinges on the Supreme Court taking back their order to DC in Heller regarding handguns. Maryland argues that handguns are especially effective at concealment and in confrontation - so they must therefore be banned. The Supreme Court ruled that handguns are especially useful in personal confrontation, and therefore especially deserving of protection. This was the basis of the "common use" standard, which Gansler ignores and avoids like a plague. He completely fails to address it.

    Unlike the "presumptively lawful" language in Heller that everyone likes to hang their hat on - the language on handguns was not dicta. It was a significant part of the ruling because it directly addressed a challenged element of law. The rule for dicta is that if the results of a decision could not stand unchanged without the language, it is not dicta.

    DC outright banned handguns and offered long guns as a solution. Heller said no to that and created a common use standard to find handguns protected. It then added language in the analysis to demonstrate that handguns deserve special protection for the very reason DC hated them: their ease of use and overwhelming popularity. DC offered the "thieves veto" defense and the Supreme Court smacked it down.

    Handguns are protected. The Supreme Court is not California. This is challenged and we will prevail.
     

    yellowfin

    Pro 2A Gastronome
    Jul 30, 2010
    1,516
    Lancaster, PA
    Anyone other than me having a hard time getting the updates on this one on PACER? The last two entries I see are these:

    06/20/2011 9 Filed clerk order (Deputy Clerk: GSS): Appellants Adam Richards, et al.’s opposed motion to align No. 10-56971 and 11-16255 for oral argument is denied. However, these cases shall be calendared before the same panel if practicable. The briefing schedule established on March 7, 2011 shall remain in effect for No. 10-56971. The briefing schedule established on May 19, 2011 shall remain in effect for No. 11-16255. [7790569] [10-56971, 11-16255] (SM)

    07/08/201 10 Case rejected from Circuit Mediation Program.

    Yet I see on the big links page that the opening brief for our side was due on 8/4. Anyone know much about this? I'm a bit of a neophyte w/ PACER so it took me even a bit of time to find the case number, which is 11-16255. Does "rejected from Circuit Mediation Program" mean that the appeal wasn't accepted? I thought it pretty much has to be. I'm confused.
     

    krucam

    Ultimate Member
    Anyone other than me having a hard time getting the updates on this one on PACER? The last two entries I see are these:



    Yet I see on the big links page that the opening brief for our side was due on 8/4. Anyone know much about this? I'm a bit of a neophyte w/ PACER so it took me even a bit of time to find the case number, which is 11-16255. Does "rejected from Circuit Mediation Program" mean that the appeal wasn't accepted? I thought it pretty much has to be. I'm confused.

    The original plan had briefs due beginning 8/4/2011. However, Counsel for Richards (SAF/Gura) filed a motion to align Richards with Peruta, so this may have messed up the scheduling. Dunno...

    Info on the Richards/Peruta attempted alignment: http://www.calguns.net/calgunforum/showthread.php?t=442769
     

    yellowfin

    Pro 2A Gastronome
    Jul 30, 2010
    1,516
    Lancaster, PA
    Aha, I see the problem...the new date according to the top entry on the docket says opening brief due 8/24 rather than 8/4 as listed @ the big list page. This Pacer stuff is kinda interesting.
     

    yellowfin

    Pro 2A Gastronome
    Jul 30, 2010
    1,516
    Lancaster, PA
    Yep, well, I have it open in Mozilla w/ Recap, and it SUCKS that it doesn't work at the Circuit level. I also run Opera and Safari too just in case something loads faster or better with them.
     

    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho
    The opening brief is in. It is 90 pages, of which I've read about half (I was busy re-reading the Baker v. Kealoha case).

    There are some tantalizing quotes, like FN1 (pg. 4 & 5):

    Plaintiffs respectfully suggest that two cases pending in this
    Court, alleging malfeasance on the part of Sacramento County and its
    former Sheriffs by disgruntled handgun carry permit applicants, Mehl
    v. Blanas, No. 08-15773 and Rothery v. County of Sacramento, No. 09-
    6852, are mooted by the very different practices which now prevail in
    Sacramento County. In any event, Plaintiffs’ claims differ starkly from
    the sort of allegations leveled in Mehl and Blanas.

    Nice ploy to get Gorski placed in a corner...

    More later, if no one else posts.
     

    Attachments

    • Richards-v-Prieto-Opening-Brief-20110824.pdf
      4.8 MB · Views: 138

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Scanned the brief quickly and set it aside for later. Have a generator to pull out and test before Irene makes stuff hard to find.

    It appears that Gura is aiming a heavy prior-restraint argument using first amendment principles. Good call, because appeal would place that issue firmly in the hands of the Supreme Court. We really, really want first amendment prior-restraint logic applied to the second amendment. As in, we really want that to happen.

    There are easier arguments to make at this level for this case, but at the end of the day we want the things Gura is arguing in this case to be law (or the framework around the law, to be precise). That means a tougher fight now, but a bigger payoff later. Gura has not been averse to admitting that many of his arguments are aimed squarely at the big court. I think in his mind, he would trade a win at the lower courts for a win in the big court. Meaning...it's OK to lose everything but the final round.

    I would agree.
     

    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho
    There were two amicus briefs filed.

    The NRA brief is filled with some delicious statistics that shred the trial Judges mantra of "Public Safety."

    The CRPA brief is also filled with citations against the "in the home" mantra and calls into question the fallacy that Unloaded Open Carry (UOC - a CA thing) is sufficient for self defense.

    Two very good briefs, that challenge previous 9th Circuit opinions (not just the Trial Judges ruling).
     

    Attachments

    • NRA-Richards-Amicus-2011-08-31.pdf
      1.9 MB · Views: 172
    • CRPA-F-Richards-Amicus-2011-08-31.pdf
      1.9 MB · Views: 124

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    I think most here would probably enjoy the NRA brief. I only saw a few issues and holes, but they have more to do with the verified research data than to cherry-picking sources. VPC's numbers were rightfully shown to be bunk.

    I think people should bookmark this amicus. It will prove handy when you need to rebut an argument.

    The CRPA brief is excellent, too. It reflects much of the current historical guidance on Right To Carry.
     

    krucam

    Ultimate Member
    The NRA Amicus was heavily based on statistics. While helpful because they reveal the cracks in the Gun-Control walls & foundation...it is not necessary and hasn't been since the McDonald Orals (IIRC) when there was a discussion on the relevance of stats and which side had the better stats.

    The point being, which side has the better stats doesn't matter with an enumerated right.
    [/soapbox]

    For the purposes of a Court in California, this heavy use of stats may be necessary...unfortunately. I mean no offense to stat-hounds out there! I found it dry.

    The CRPA Amicus starts off much better IMHO, including a very early reference to Blackstone. :innocent0

    The CRPA is very much an extension of the Heller analysis on the roots of the right. Well written I thought...
     

    swinokur

    In a State of Bliss
    Patriot Picket
    Apr 15, 2009
    55,394
    Westminster USA
    From SAF
    [FONT=&quot]
    saf-alertsA.gif


    saf-alertsD.gif
    [/FONT]

    [FONT=&quot]SAF THANKS NRA, CRPAF FOR AMICUS
    BRIEFS IN RICHARDS V. PRIETO CASE[/FONT]

    [FONT=&quot]BELLEVUE, WA - The Second Amendment Foundation today thanked the National Rifle Association and California Rifle and Pistol Foundation for filing amicus briefs in SAF's challenge of Yolo County, California's policies that exploit the state's regulations on the issuance of concealed firearms carry permits.

    Joining SAF in that lawsuit is the CalGuns Foundation. The case is known as Richards v. Prieto. It targets Yolo County's arbitrary policy that requires CCW applicants to provide good cause for obtaining a permit, and subjects each applicant to a "moral character" standard.

    "The policies practices in Yolo County are clearly unconstitutional and should be overturned," said SAF Executive Vice President Alan M. Gottlieb. "We filed the lawsuit because citizens should not be subjected to such policies simply in an effort to exercise their rights to bear arms for personal protection.

    "We are delighted that our good friends at both the NRA and CRPA have filed briefs in support of this cause," he continued. "Authorities in Yolo County who are trying to perpetuate this egregious policy despite the Supreme Court's clear determination that self-defense is a cornerstone tenet of the right to keep and bear arms."

    Gottlieb noted that the overwhelming majority of the states have adopted shall-issue statutes for concealed carry licenses or permits, and that they have worked remarkably well by removing the authority from local officials who may want to abuse complicated regulations such as those that exist in the Golden State.

    "State and local governments should be scrambling to review, and where necessary, adjust firearms laws and regulations in the wake of two Supreme Court rulings on the Second Amendment," Gottlieb said. "When local governments continue to resist, rather than comply with, the principles and spirit of high court rulings and the Constitution, we'll continue to meet them in court. As NRA and CRPAF have demonstrated with their briefs in this case, when we take people to court, we're going to have company."

    [/FONT]

    [FONT=&quot]The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. In addition to the landmark McDonald v. Chicago Supreme Court Case, SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; New Orleans; Chicago and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and numerous amicus briefs holding the Second Amendment as an individual right.[/FONT]
    [FONT=&quot]

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    [FONT=&quot]< Please e-mail, distribute, and circulate to friends and family >[/FONT]​
    Copyright © 2011 Second Amendment Foundation, All Rights Reserved.​
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    James Madison Building
    12500 N.E. Tenth Place
    Bellevue, WA 98005[/FONT]
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    krucam

    Ultimate Member
    The Appellee (Defendant) Answering Brief was filed yesterday in Richards v Prieto (nee Sykes v McGinness)

    Not read yet, but hearing it has something to do with the Wild West and Blood in the Streets...
     

    Attachments

    • Richards Appellee Answering Brief CA9 2011_09_23.pdf
      1.3 MB · Views: 135

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    The opening pages are pretty good. They accurately describe plaintiff's arguments and correctly note that if the Second Amendment applies outside the home, and if unloaded guns are not "functional", then the county sheriff must issue permits absent individual constitutionally-sound exceptions (felons, etc.).

    So the rest of the brief attacks both, and then throws in lots of drivel about the wild west. This is an obvious attempt to mock the plaintiffs and make them look crazy in the eyes of the nice judges in San Francisco.

    This is tailored for the Ninth Circuit, not the Supreme Court. This is pure delay. The "compelling interest" arguments fit perfectly into the framework they created in Nordyke - where even when the right exists they can ban by means of simply saying the legislature knows best. It is a simple case for them to ban a fundamental right by legislative decree.

    The defense will work in the Ninth but fail in the Supreme Court. It is obvious they know this, because some of this brief all but openly mocks the Heller and McDonald historical analysis. If they were serious, they'd drop the schtick and make sound arguments that don't annoy the last court.

    Will this get to the Supreme Court before something else? Probably not. There is a chance that the case could advance over the loaded/unloaded question, but even the Ninth will have a tough time holding that line after the next big case. Especially since both cases asking cert right now involved loaded guns.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The opening pages are pretty good. They accurately describe plaintiff's arguments and correctly note that if the Second Amendment applies outside the home, and if unloaded guns are not "functional", then the county sheriff must issue permits absent individual constitutionally-sound exceptions (felons, etc.).

    So the rest of the brief attacks both, and then throws in lots of drivel about the wild west. This is an obvious attempt to mock the plaintiffs and make them look crazy in the eyes of the nice judges in San Francisco.

    This is tailored for the Ninth Circuit, not the Supreme Court. This is pure delay. The "compelling interest" arguments fit perfectly into the framework they created in Nordyke - where even when the right exists they can ban by means of simply saying the legislature knows best. It is a simple case for them to ban a fundamental right by legislative decree.

    The defense will work in the Ninth but fail in the Supreme Court. It is obvious they know this, because some of this brief all but openly mocks the Heller and McDonald historical analysis. If they were serious, they'd drop the schtick and make sound arguments that don't annoy the last court.

    Will this get to the Supreme Court before something else? Probably not. There is a chance that the case could advance over the loaded/unloaded question, but even the Ninth will have a tough time holding that line after the next big case. Especially since both cases asking cert right now involved loaded guns.

    Agreed, they did do a fairly accurate analysis of plaintiff's complaint. Here's where the fail comes in. They seem to think the statutes can withstand strict scrutiny simply because it's in the public safety interest. In that regard, ANY law would be constitutional simply because the government is (or thinks it is) acting in the interest of public safety. Random street searches by police would be constitutional because, inevitably, they could pick off a few bad guys on the way to commit a crime.
    Also, CA does allow OC of a loaded firearm in unincorporated areas, but I'm skeptical of their claim that it's basically everywhere outside of a city. And that fails too. A fundamental right would have a different meaning in the city as opposed to the country. And then, they devote a big chunk to how unloaded open carry is fine for self-defense. If Governor Brown doesn't veto AB 144, then that argument is off the table.
    Of course, there's "only in the home" but it seems less of a focal point, unlike many of the other cases we've seen.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    Agreed, they did do a fairly accurate analysis of plaintiff's complaint. Here's where the fail comes in. They seem to think the statutes can withstand strict scrutiny simply because it's in the public safety interest. In that regard, ANY law would be constitutional simply because the government is (or thinks it is) acting in the interest of public safety. Random street searches by police would be constitutional because, inevitably, they could pick off a few bad guys on the way to commit a crime.
    Also, CA does allow OC of a loaded firearm in unincorporated areas, but I'm skeptical of their claim that it's basically everywhere outside of a city. And that fails too. A fundamental right would have a different meaning in the city as opposed to the country. And then, they devote a big chunk to how unloaded open carry is fine for self-defense. If Governor Brown doesn't veto AB 144, then that argument is off the table.
    Of course, there's "only in the home" but it seems less of a focal point, unlike many of the other cases we've seen.

    Great summary of the defense arguments. The highlighted portion above is a slope so slippery I think even the Ninth would have some heartburn over it - though a 3-judge panel did not in Nordyke. I don't see that part of Nordyke surviving. The smartest thing the Ninth could do today to defer the right is to grant en banc review and delist the opinion. They can circle back after the next big SCOTUS opinion. Just like the last time.

    If anyone here ever meets the Nordykes or their attorneys, please buy them a lot of drinks. They have been kicked around for over a decade now.
     

    krucam

    Ultimate Member
    ...And then, they devote a big chunk to how unloaded open carry is fine for self-defense. If Governor Brown doesn't veto AB 144, then that argument is off the table.


    And we await the Plaintiff response following Gov Brown's signing of AB144 yesterday. This response was originally due last Friday. Gene Hoffman (CGF) indicated that their response would be tailored to the Governor's actions....

    This will be a good one and I can't wait to see it.

    :innocent0
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    And we await the Plaintiff response following Gov Brown's signing of AB144 yesterday. This response was originally due last Friday. Gene Hoffman (CGF) indicated that their response would be tailored to the Governor's actions....

    This will be a good one and I can't wait to see it.

    :innocent0

    Prieto's answer will be,well, "only in the home." At least CA has the interesting dynamic of having many virtual shall-issue counties that haven't had streets running with blood, and I'm sure that's going to come up sooner or later.
     

    krucam

    Ultimate Member
    And the moment has come....Calguns Foundation/SAF/Gura filed their response in Richards. This was due a few weeks back but "things have changed" with CA's passing of AB 144. Unloaded Open Carry will no longer be an option in the near future, Jan IIRC.

    SAF response: http://www.hoffmang.com/firearms/richards-v-prieto/Richards-Reply-2011-10-25.pdf

    Just looking at the TOC gets my BP rising!
    Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    I. CALIFORNIA LAW NOW FORBIDS ALL CARRYING OF HANDGUNS
    IN INCORPORATED AND MANY UNINCORPORATED AREAS ABSENT
    A PERMIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    II. THE AVAILABILITY OF LOADED OPEN HANDGUN CARRY
    IN REMOTE PARTS OF THE NATION’S THIRD LARGEST STATE
    IS IRRELEVANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
    III. PRIOR RESTRAINT DOCTRINE SECURES THE RIGHT TO
    BEAR ARMS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    IV. DEFENDANTS’ AND AMICI’S POLICY ARGUMENTS
    ARE IRRELEVANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
    A. THE SECOND AMENDMENT ALREADY REFLECTS THE
    PEOPLE’S PUBLIC POLICY CHOICE . . . . . . . . . . . . . . . . . . . . . . 17
    B. THE PROFFERED SOCIAL SCIENCE DATA IS FLAWED
    AND IRRELEVANT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
    V. OVERBREADTH IS A SECOND AMENDMENT DOCTRINE.. . . . . . . . . . 28
    Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
    Statutory Addendum – Assembly Bill 144. . . . . . . . . . . . . . Addendum 1
    i
    Case: 11-16255 10/25/2011 ID: 7941750 DktEntry: 37 Page: 3 of 57

    :innocent0 Someone say "Smokin'"?

    The new Crux of the Plaintiff's Argument, which they mention saying a Summary Judgment may be prudent as a result:
    Alas, on October 9, 2011, California’s Governor signed into law Assembly Bill 144, criminalizing the unloaded open carrying of handguns in any incorporated portion of the state, or in any unincorporated area in which shooting is forbidden. Thus, Plaintiffs need not respond to the argument that openly carrying unloaded handguns is anything other than an invitation to robbery. Whatever its legal significance last month, that option is off the table effective January 1, 2012, and with it, the crux of Defendants’ position as well as the rationale articulated by the court below.

    And for the second time today, I feel we have a "game/set/match" here...
     

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