Kolbe v O'Malley being Appealed to CA4

[Abulg1972]

I understood it as sarcasm but it seemed to have no point. Hence the question mark.

 

[ShallNotInfringe]

I do not know a lot but I know that the Court is not going to affirm the lower court's decision. That opinion was grounded in neither fact nor the law. I just pray that there is enough in the record for the court to rule on the legal issues so that they don't have to remand it back to the lower court for further fact finding and additional "reflection".

Wouldn't that be interesting? Frosh would love revisiting his position as the newly minted AG.

Fact finding...hmmmm...why does Daniel Webster's voice keep playing in my mind?

 

[swinokur]

I think the point was no one can predict a court's ruling in these cases.

just a guess.

 

[ShallNotInfringe]

I know I know

If it did get remanded back, are there any fees reimbursed to the plaintiff?

 

[Abulg1972]

I know I know

If it did get remanded back, are there any fees reimbursed to the plaintiff?

No reimbursement - it's just part of the American way. The 4th Circuit could do one of 3 things: (i) it could remand the case; (ii) it could reverse the lower court with respect to one or all issues before the court if it finds that the record is sufficient (which might also require a remand); or (iii) it could affirm the lower court's decision.

A remand is the act of an appellate court sending the case back to the lower court and ordering the lower court to conduct limited new hearings (e.g., to obtain more facts), reconsider issues in light of the appeals court's ruling, conduct an entirely new trial, etc. Basically, the appeals court is telling the lower court that it got something wrong or didn't do enough. You typically see that when more facts are needed to properly and thoroughly consider the legal issues, when the trial court applied the wrong legal standard to an issue, or when the lower court made a bad ruling on a particular issue that impacted her rulings on other issues.

The reason that I said above that I know that the 4th Cir. will not affirm the lower court (of course no one can be certain of what any court will do) is that there are too many errors in her factual findings (e.g., that an AR15 is not commonly owned for lawful purposes by law abiding citizens), the facts on the record don't support her conclusions, and this case is important and her ruling seems to be at odds with 4th Circuit, and other federal, case law. I've listened to the oral arguments 3 times, and I believe very strongly that the court did not buy the State's arguments, particularly with respect to magazines. I also believe that the 4th Cir does not see a difference, from a Constitutional point of view, between a semi-auto handgun and a semi-auto rifle.

Here's my prediction: The 4th Circuit will reverse the lower court, conclude that the banned rifles and magazines are commonly owned by law abiding citizens for lawful purposes, and articulate the constitutional standard that must be applied to the law. The 4th Cir will either decide the issues on its own if the facts are sufficient to do so, or remand the case back to the lower court for her to gather more facts or apply the standard set by the appeals court. I will hold a party if this happens.

But, at the end of the day . . . who knows what will happen.

The State mentioned in its argument that the plaintiffs did not produce any evidence, and the State Police could not confirm, that a Maryland resident has had to shoot more than 10 rounds in a self-defense situation. Is that true? I seem to remember reading in the briefs a lot about how cops have 17 rounders and frequently shoot more than 10, but maybe I'm mistaken. If true, does anyone know why the plaintiffs didn't present such evidence ? I would think that this data is out there.

 

[esqappellate]

No reimbursement - it's just part of the American way. The 4th Circuit could do one of 3 things: (i) it could remand the case; (ii) it could reverse the lower court with respect to one or all issues before the court if it finds that the record is sufficient (which might also require a remand); or (iii) it could affirm the lower court's decision.


Here's my prediction: The 4th Circuit will reverse the lower court, conclude that the banned rifles and magazines are commonly owned by law abiding citizens for lawful purposes, and articulate the constitutional standard that must be applied to the law. The 4th Cir will either decide the issues on its own if the facts are sufficient to do so, or remand the case back to the lower court for her to gather more facts or apply the standard set by the appeals court. I will hold a party if this happens.

But, at the end of the day . . . who knows what will happen.

The State mentioned in its argument that the plaintiffs did not produce any e.

That's quite bold of you. I wonder if a remand is appropriate. The case was decided on cross motions for summary judgment and the state has the burden of proof under any level of heightened scrutiny. If there has been a failure of proof by the state under the correct legal standard, the court should reverse and order the entry of judgment for plaintiffs -- not give the state another bite at the apple.

 

[Abulg1972]

That's quite bold of you. I wonder if a remand is appropriate. The case was decided on cross motions for summary judgment and the state has the burden of proof under any level of heightened scrutiny. If there has been a failure of proof by the state under the correct legal standard, the court should reverse and order the entry of judgment for plaintiffs -- not give the state another bite at the apple.

Well, like I said, if the record contains sufficient facts, then I would think that it would just decide the case, but who knows what it will do. I don't think it's likely that it will remand for further proceedings just because I think that all the facts necessary to decide the issues are there - either the 4th Cir agrees with the lower court's legal conclusions or it doesn't. One way or another, I'm betting - I hope - that the 4th Cir is going to conclude that the lower court didn't do its job. It could decide that no standard applies given the scope of the ban, but I don't think it's going to do that - I think it's going to articulate a standard of review (either strict scrutiny or intermediate scrutiny) and then apply that standard to decide the case. Of course, everything comes down to whether the 4th Cir concludes the ARs and magazines larger than 10 are commonly owned. The one good fact we have is that the State presented no evidence that it tried - or even explored - something less restrictive than the bans, and it also presented no evidence that the former law wasn't effective. The court won't let the State have another shot at presenting that evidence, and I think that issue is fatal to the State's case.

 

[dblas]

I do not know a lot but I know that the Court is not going to affirm the lower court's decision. That opinion was grounded in neither fact nor the law. I just pray that there is enough in the record for the court to rule on the legal issues so that they don't have to remand it back to the lower court for further fact finding and additional "reflection".

The Circuit Court judge allowed us the ability to submit as much information for the record as we wanted, on an expedited schedule, to move the case along knowing the losing side would appeal to the 4th Circuit.

I doubt there will be any remand for more information.

 

[esqappellate]

Well, like I said, if the record contains sufficient facts, then I would think that it would just decide the case, but who knows what it will do. I don't think it's likely that it will remand for further proceedings just because I think that all the facts necessary to decide the issues are there - either the 4th Cir agrees with the lower court's legal conclusions or it doesn't. One way or another, I'm betting - I hope - that the 4th Cir is going to conclude that the lower court didn't do its job. It could decide that no standard applies given the scope of the ban, but I don't think it's going to do that - I think it's going to articulate a standard of review (either strict scrutiny or intermediate scrutiny) and then apply that standard to decide the case. Of course, everything comes down to whether the 4th Cir concludes the ARs and magazines larger than 10 are commonly owned. The one good fact we have is that the State presented no evidence that it tried - or even explored - something less restrictive than the bans, and it also presented no evidence that the former law wasn't effective. The court won't let the State have another shot at presenting that evidence, and I think that issue is fatal to the State's case.

If we return to basic principles of SJ as set out by the SCT, there would be a remand only if there were material facts in dispute. Whether a factual dispute is "material" depends on the legal theory. The state has its theory, viz., that AWs are unusually dangerous and thus outside the scope of the 2A. If the court accepts that theory, it will assess whether the state proved its case or whether material issues of fact preclude SJ for the state. Our theory is that the 2A protects categorically weapons that are in common use and, as thus defined, AWs are in common use and thus protected. The State's theory is not without support, eg. in Heller II, the DC Circuit sustained DC's AW ban pretty much on that basis, as did the 7th Circuit even more recently in Friedmann. I heard the panel basically rejecting our argument that no level of scrutiny was appropriate as a ban on guns in common use was per se unconstitutional. If they adopt our alternative argument that at least strict scrutiny is appropriate, the question becomes whether the State has carried its burden to show that AWs are unusually dangerous (tough) and that a total ban is the least restrictive measure (tougher still). We get into potential trouble only if the court adopts intermediate scrutiny, ala Heller II. We thus can still lose. A loss is likely if they adopt the test articulated in Friedmann. If they follow the dissent in Friedmann, we are golden. If the court perceives the choice in that way, we will get a circuit split if they opt for the dissent in Friedmann. That's asking a lot of a court of appeals -- panels generally don't like creating circuit splits. Expect an en banc petition in that case from the State.

 

[clandestine]

I bet they affirm the lower courts ruling.

Since when is ANY AntiGun laws based on fact?

It's a great fight to fight, but nothing will change.

 

[Abulg1972]

If they except the argument that assault weapons and magazines are in common use, then I don't think they have any choice but to adopt strict scrutiny. Even if they adopt intermediate scrutiny? Doesn't the state have to show that they tried to use less restrictive means to address the perceived harm?

Like I said, I don't know what the court is going to do. I know what I hope it's going to do, but I do not believe the court will affirm the lower court's decision. An important issue like this, it just lacks any reasonable logic or discussion.

 

[esqappellate]

If they except the argument that assault weapons and magazines are in common use, then I don't think they have any choice but to adopt strict scrutiny. Even if they adopt intermediate scrutiny? Doesn't the state have to show that they tried to use less restrictive means to address the perceived harm?

Like I said, I don't know what the court is going to do. I know what I hope it's going to do, but I do not believe the court will affirm the lower court's decision. An important issue like this, it just lacks any reasonable logic or discussion.

Logic and reason is in short supply on this issue. Witness Judge Easterbrook's reliance on the irrational "feelings" of the population in Friedmann, viz., that a ban doesn't make them safer (cuz use of AWs in mass shootings is really rare) but it may make them feel safer and that's a substantial benefit. Jeeez.

 

[press1280]

If we return to basic principles of SJ as set out by the SCT, there would be a remand only if there were material facts in dispute. Whether a factual dispute is "material" depends on the legal theory. The state has its theory, viz., that AWs are unusually dangerous and thus outside the scope of the 2A. If the court accepts that theory, it will assess whether the state proved its case or whether material issues of fact preclude SJ for the state. Our theory is that the 2A protects categorically weapons that are in common use and, as thus defined, AWs are in common use and thus protected. The State's theory is not without support, eg. in Heller II, the DC Circuit sustained DC's AW ban pretty much on that basis, as did the 7th Circuit even more recently in Friedmann. I heard the panel basically rejecting our argument that no level of scrutiny was appropriate as a ban on guns in common use was per se unconstitutional. If they adopt our alternative argument that at least strict scrutiny is appropriate, the question becomes whether the State has carried its burden to show that AWs are unusually dangerous (tough) and that a total ban is the least restrictive measure (tougher still). We get into potential trouble only if the court adopts intermediate scrutiny, ala Heller II. We thus can still lose. A lose is likely if they adopt the test articulated in Friedmann. If they follow the dissent in Friedmann, we are golden. If the court perceives the choice in that way, we will get a circuit split if they opt for the dissent in Friedmann. That's asking a lot of a court of appeals -- panels generally don't like creating circuit splits. Expect an en banc petition in that case from the State.[/QUOTE]

Which almost seems like a decent chance that it would happen, just looking at how many gun cases have gone that way, not to mention the poor makeup of CA4 for our side.

 

[Brooklyn]

That's quite bold of you. I wonder if a remand is appropriate. The case was decided on cross motions for summary judgment and the state has the burden of proof under any level of heightened scrutiny. If there has been a failure of proof by the state under the correct legal standard, the court should reverse and order the entry of judgment for plaintiffs -- not give the state another bite at the apple.

But a remand holding that real IS needs to apply is still a victory is it not...

 

[esqappellate]

But a remand holding that real IS needs to apply is still a victory is it not...

Yes! Of course. Anything that vacates the district court's decision would be a victory.

 

[pcfixer]

Logic and reason is in short supply on this issue. Witness Judge Easterbrook's reliance on the irrational "feelings" of the population in Friedmann, viz., that a ban doesn't make them safer (cuz use of AWs in mass shootings is really rare) but it may make them feel safer and that's a substantial benefit. Jeeez.

Sir, you just stated a mouthful. And very much true.

 

[Dogmeat]

A point of concern for me is the fact that the firearms covered by the ban were previously considered regulated/registered in Maryland. Would that previous status be sufficient to demonstrate that the State tried a less restrictive method per the discussion of Intermediate Scrutiny? Granted that none of these firearms have been used in Maryland in the manner claimed by the State to justify categorizing them unusually dangerous, but since when have facts mattered in a gun case.

 

[rockstarr]

how much longer to go now?

 

[PJDiesel]

how much longer to go now?

 

[DC-W]

how much longer to go now?