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  • yellowfin

    Pro 2A Gastronome
    Jul 30, 2010
    1,516
    Lancaster, PA
    Sounds like a stalling tactic to me!! My wish is they would own up to fundamental constitutional rights that are NOT overriden by the words 'public safety'.
    A big part of the problem is that since 1897 "public safety" has been used to overrule individual rights almost without limit, thanks to a Supreme Court case that the current Court and none before it have never bothered to completely overturn (despite it supposedly being reversed in 1954, the partial reversal was VERY narrowly applied) and obey almost without question today even while it is considered one of the most hated decisions in history. The ruling stated that police and state governments have a prerogative to abridge individual rights in the interest of public safety, and that surrender of rights is an obligatory payment in exchange for the benefits of being part of society.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    A big part of the problem is that since 1897 "public safety" has been used to overrule individual rights almost without limit, thanks to a Supreme Court case that the current Court and none before it have never bothered to completely overturn (despite it supposedly being reversed in 1954, the partial reversal was VERY narrowly applied) and obey almost without question today even while it is considered one of the most hated decisions in history. The ruling stated that police and state governments have a prerogative to abridge individual rights in the interest of public safety, and that surrender of rights is an obligatory payment in exchange for the benefits of being part of society.

    What 1897 case are you referring to?
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    From DC's motion:

    If the appeal is not held in abeyance, the case will proceed on inefficient and incomplete tracks in both this Court and the district court. For example, if the district court determines that it has jurisdiction over plaintiffs’ motions and rules on the merits of them, any resulting appeals should be consolidated with the present appeal. But consolidation might not be possible at that point, given that plaintiffs filed a motion for summary affirmance one day after this appeal was docketed.
    I can read between some lines. Did Gura's affirmance motion make it harder/impossible to combine the district's rulings on appeal?

    If so, it makes more sense why he did it. Would it "freeze" the initial ruling pending disposition of the affirmance motion? That means DC would have to file yet another appeal on the District Court's subsequent rulings (a PI, for instance) that would hinge largely on whether the initial ruling was correct. So instead of DC consolidating all those eggs (schedule items) into one basket, they have to handle them serially. That means more time, which DC does not have.

    Paging the smart people...

    If any of the above makes sense, I wonder how it matters when the Circuit is just going to stay pending appeal, anyway.

    Also, DC is moving to make permanent the new temp laws. How the hell are they going to claim harm when they passed a law that effectively shutters the carry option? I know they can appeal the original ruling regardless, but how do they argue that it must be stayed when they created "reasonable" regulations to avoid it?

    So history, off the top of my head:

    - Gura files Palmer
    - The Earth spins around the Sun far too many times...
    - DC loses
    - DC gets 90 day stay to pass "reasonable regulations"
    - DC passes temp law to counter loss, while asking for a reconsideration of the ruling by the District Court
    - DC notices it will appeal ruling
    - Gura asks District Court for injunction against new DC sham-wow laws, as unconstitutional under the District Court ruling
    - District Court denies reconsideration
    - Gura asks for affirmance by Appellate Court (Circuit Court), freezing the original ruling
    - DC claims District Court cannot enforce it's own laws, makes judge laugh (not really). Judge says "two more weeks" (really) for DC to defend new laws to him.
    - DC notices to Circuit that they still want to appeal, but that everyone should wait for District Court to rule...so please sit on our appeal, for now. Also admit Gura outfoxed them re: consolidation because of affirmance motion (I have no idea why this matters)
    - DC announces the new temp laws will become permanent, but they are already too late for them to take effect before the 90-day stay runs out

    Going Forward:

    - Assume District Court finds new temp laws invalid, orders injunction
    - DC gets a permanent stay pending appeal
    - ???
    - Profit!!!

    There is an angle in here I am not seeing, assuming the things I think I already saw were not seen though some derivative of Alice's looking-glass.

    (Please tell me someone caught one of the oldest internet memes, somewhere above. I am already feeling old today and don't' want to be alone here...)
     

    fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974
    From DC's motion:

    I can read between some lines. Did Gura's affirmance motion make it harder/impossible to combine the district's rulings on appeal?

    If so, it makes more sense why he did it. Would it "freeze" the initial ruling pending disposition of the affirmance motion? That means DC would have to file yet another appeal on the District Court's subsequent rulings (a PI, for instance) that would hinge largely on whether the initial ruling was correct. So instead of DC consolidating all those eggs (schedule items) into one basket, they have to handle them serially. That means more time, which DC does not have.

    Paging the smart people...

    If any of the above makes sense, I wonder how it matters when the Circuit is just going to stay pending appeal, anyway.

    Also, DC is moving to make permanent the new temp laws. How the hell are they going to claim harm when they passed a law that effectively shutters the carry option? I know they can appeal the original ruling regardless, but how do they argue that it must be stayed when they created "reasonable" regulations to avoid it?

    So history, off the top of my head:

    - Gura files Palmer
    - The Earth spins around the Sun far too many times...
    - DC loses
    - DC gets 90 day stay to pass "reasonable regulations"
    - DC passes temp law to counter loss, while asking for a reconsideration of the ruling by the District Court
    - DC notices it will appeal ruling
    - Gura asks District Court for injunction against new DC sham-wow laws, as unconstitutional under the District Court ruling
    - District Court denies reconsideration
    - Gura asks for affirmance by Appellate Court (Circuit Court), freezing the original ruling
    - DC claims District Court cannot enforce it's own laws, makes judge laugh (not really). Judge says "two more weeks" (really) for DC to defend new laws to him.
    - DC notices to Circuit that they still want to appeal, but that everyone should wait for District Court to rule...so please sit on our appeal, for now. Also admit Gura outfoxed them re: consolidation because of affirmance motion (I have no idea why this matters)
    - DC announces the new temp laws will become permanent, but they are already too late for them to take effect before the 90-day stay runs out

    Going Forward:

    - Assume District Court finds new temp laws invalid, orders injunction
    - DC gets a permanent stay pending appeal
    - ???
    - Profit!!!

    There is an angle in here I am not seeing, assuming the things I think I already saw were not seen though some derivative of Alice's looking-glass.

    (Please tell me someone caught one of the oldest internet memes, somewhere above. I am already feeling old today and don't' want to be alone here...)


    I think the affirmation (if nothing else) boxes DC into a corner with regards to "if you pass it, you own it" and makes them deal with "outside the home exists as a right" and can we then really get away with the "may" part if it's a right.

    Just how I see it, if that makes sense.

    Kuddos for the best use of "sham-wow" in a thread.
     

    swinokur

    In a State of Bliss
    Patriot Picket
    Apr 15, 2009
    55,394
    Westminster USA
    Patrick, FWIW Vince agrees with your evaluation of the situation
     

    Attachments

    • vince.jpg
      vince.jpg
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    rem87062597

    Annapolis, MD
    Jul 13, 2012
    641
    I feel like personally the most confusing part in these judicial threads is trying to figure out whether "two weeks" is literal or figurative.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    From DC's motion:

    I can read between some lines. Did Gura's affirmance motion make it harder/impossible to combine the district's rulings on appeal?

    If so, it makes more sense why he did it. Would it "freeze" the initial ruling pending disposition of the affirmance motion? That means DC would have to file yet another appeal on the District Court's subsequent rulings (a PI, for instance) that would hinge largely on whether the initial ruling was correct. So instead of DC consolidating all those eggs (schedule items) into one basket, they have to handle them serially. That means more time, which DC does not have.

    Paging the smart people...

    If any of the above makes sense, I wonder how it matters when the Circuit is just going to stay pending appeal, anyway.

    Also, DC is moving to make permanent the new temp laws. How the hell are they going to claim harm when they passed a law that effectively shutters the carry option? I know they can appeal the original ruling regardless, but how do they argue that it must be stayed when they created "reasonable" regulations to avoid it?

    So history, off the top of my head:

    - Gura files Palmer
    - The Earth spins around the Sun far too many times...
    - DC loses
    - DC gets 90 day stay to pass "reasonable regulations"
    - DC passes temp law to counter loss, while asking for a reconsideration of the ruling by the District Court
    - DC notices it will appeal ruling
    - Gura asks District Court for injunction against new DC sham-wow laws, as unconstitutional under the District Court ruling
    - District Court denies reconsideration
    - Gura asks for affirmance by Appellate Court (Circuit Court), freezing the original ruling
    - DC claims District Court cannot enforce it's own laws, makes judge laugh (not really). Judge says "two more weeks" (really) for DC to defend new laws to him.
    - DC notices to Circuit that they still want to appeal, but that everyone should wait for District Court to rule...so please sit on our appeal, for now. Also admit Gura outfoxed them re: consolidation because of affirmance motion (I have no idea why this matters)
    - DC announces the new temp laws will become permanent, but they are already too late for them to take effect before the 90-day stay runs out

    Going Forward:

    - Assume District Court finds new temp laws invalid, orders injunction
    - DC gets a permanent stay pending appeal
    - ???
    - Profit!!!

    There is an angle in here I am not seeing, assuming the things I think I already saw were not seen though some derivative of Alice's looking-glass.

    (Please tell me someone caught one of the oldest internet memes, somewhere above. I am already feeling old today and don't' want to be alone here...)

    The point is moot as there is no way the motion for summary affirmance will be granted. Indeed, the district's abeyance motion makes it more difficult for the motion for summary affirmance to be granted as the court will not want to approach this case piecemeal.

    That the district has still not asked for a stay pending appeal from the D.C. Circuit suggests only that they know that (1) can't meet the standard for such a stay in light of the legislation they have passed and the difficulty of demonstrating a likelihood of success on the merits, or (2) that they know that the initial appeal is mooted by the passage of permanent legislation.

    Did anyone catch this line in the DC motion for abeyance? "See License to Carry a Pistol Emergency Amendment Act of 2014, D.C. Act A20-447 (effective October 9, 2014), 60 D.C. Reg. 10765 (Oct. 17, 2014), see also License to Carry a Pistol Temporary Amendment Act of 2014, D.C. Act A20-462 (signed by the Mayor October 31, 2014, transmitted to Congress for review Nov. 19, 2014, projected law date Jan. 3, 2015), 61 D.C. Reg. 11814 (Nov. 14, 2014).

    Now both the October 9 and the Oct 31 legislation were passed on an emergency basis and expressly limited to 90 days. I note in passing that the District has as an option to pass the same legislation on an emergency basis until such time as the 60 day period for Congressional review passes, at least as to the criminal aspects of the new law. See U.S. v. Alston, 580 A.2d 587 (D.C.,1990).

    Anyway, we should know more about the District's strategy when (and if) the District files its response to the motion for summary affirmance. That response is due 12/4/14 and, as of this morning, no extension request has been filed on that motion. I expect them to reiterate that the motion for abeyance should be granted and that the court should hold the motion for summary affirmance. But they also have to address the merits. Or least it would be foolish not to address the merits.

    But, let's play it out some. If (and it is a BIG if) Judge Scullin holds that the temporary legislation does not comply with his injunction and finds the District in contempt, DC can appeal that. But that appeal arguably becomes moot when temporary legislation expires after 90 days (unless it is renewed, which would be contemptuous if the renewal is after Judge Scullin so holds). DC has yet to enact permanent legislation and if they do, it arguably moots their first appeal. So, in the absence of permanent legislation, if the new legislation is held to be in violation of the original injunction the district's appeal goes forward along with a new appeal (consolidated) from the court's enforcement order. There could be no enforcement of the carry law in the meantime. So, the district will have to ask for a stay of any enforcement order immediately. And it would get it. If so, the district court would have to re enact the emergency legislation or pass new permanent legislation which they could do if they got a stay.
     

    fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974
    I feel like personally the most confusing part in these judicial threads is trying to figure out whether "two weeks" is literal or figurative.

    :lol::lol::lol:

    See attached for a primer. (I needed a distraction this morning).


    ETA: Patrick, I had to look up the meme, but yeah, that.
     

    Attachments

    • Two Weeks Matrix.pdf
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    TxAggie

    Ultimate Member
    Feb 25, 2012
    4,734
    Anne Arundel County, MD
    I feel like I'm listening to Vizzini's speech about the poisoned cup. My head is truly spinning trying to separate all of the avenues this case is going. From what I'm picking up, I see three topics that are going on:
    1) The initial case which ruled DC's law Unconstitutional.
    Has this ruling been appealed? (I'm getting that it hasn't, only that DC says it may)
    2) The new DC law meant to deal with the initial ruling. This law is what we are waiting for further information by DC to send to Scullin by tomorrow, Dec 4. Scullin can either rule is does or does not conform to his ruling, correct?
    3) a circuit court appeal has been filed, but I don't fully understand what this filing is. Is it to try and suspend the 90 days Scullin gave DC to create a carry law?

    I think I need a flowchart.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    I feel like I'm listening to Vizzini's speech about the poisoned cup. My head is truly spinning trying to separate all of the avenues this case is going. From what I'm picking up, I see three topics that are going on:
    1) The initial case which ruled DC's law Unconstitutional.
    Has this ruling been appealed? (I'm getting that it hasn't, only that DC says it may)
    2) The new DC law meant to deal with the initial ruling. This law is what we are waiting for further information by DC to send to Scullin by tomorrow, Dec 4. Scullin can either rule is does or does not conform to his ruling, correct?
    3) a circuit court appeal has been filed, but I don't fully understand what this filing is. Is it to try and suspend the 90 days Scullin gave DC to create a carry law?

    I think I need a flowchart.
    1. Yes.
    2. Yes
    3. No. The "appeal" simply invokes the DC Circuit's jurisdiction to review the injunction of the original law. A "stay" motion, if filed in the DC Circuit, (it hasn't been, yet), would stay (hold it ineffective) the operation of the injunction pending appeal during the entire course of the appeal, viz., until the D.C. Circuit decides the case.
     

    TxAggie

    Ultimate Member
    Feb 25, 2012
    4,734
    Anne Arundel County, MD
    1. Yes.

    2. Yes

    3. No. The "appeal" simply invokes the DC Circuit's jurisdiction to review the injunction of the original law. A "stay" motion, if filed in the DC Circuit, (it hasn't been, yet), would stay (hold it ineffective) the operation of the injunction pending appeal during the entire course of the appeal, viz., until the D.C. Circuit decides the case.


    Thank you! (2 out of 3 ain't bad for an Aggie!)
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,366
    SoMD / West PA
    DC obfuscation strategy seems to be working.

    If they can't have murky laws, they will definitely tie everything in a knot with the courts.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    DC obfuscation strategy seems to be working.
    If they can't have murky laws, they will definitely tie everything in a knot with the courts.

    I don't know about that. Thus far, they have not accomplished anything other than make themselves look dumb in front of Judge Scullin and potentially tie themselves into knots by failing to seek a stay pending appeal from the DC Circuit.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Esq, in your opinion, why has DC not asked for a stay? explain their thinking if you have some insight. I sure don't

    I think they are afraid to ask for a stay because of the real risk that they would lose, either because they can't show irreparable injury (because of the emergency legislation) or because they can't make a convincing case that they have a strong likelihood of success on the merits of a total ban (because of Moore). See Nken v. Holder, 556 U.S. 418 (2009):
    "those legal principles have been distilled into consideration
    of four factors: '(1) whether the stay applicant
    has made a strong showing that he is likely to succeed
    on the merits; (2) whether the applicant will
    be irreparably injured absent a stay; (3) whether issuance
    of the stay will substantially injure the other
    parties interested in the proceeding; and (4) where
    the public interest lies.'"
     

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