SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL UPDATED 3-5-12

jonnyl · Sep 20, 2010

seems like for one of their many reasons they're saying "He can't bring Federal action when he hasn't exhausted his State options yet"

In this way, the “ongoing state judicial proceedings” prong acts like an exhaustion requirement.
See id. at 608 (“a necessary concomitant of Younger is that a party . . . must exhaust his state
appellate remedies before seeking relief” in federal court); Moore, 396 F.3d at 388

rambling_one · Sep 20, 2010

jonnyl said:
stall...

But, but, it's all in the interest of public safety. :tdown:

Patrick · Sep 20, 2010

From argument and 110% relevant to the discussion in this thread this morning:

Indeed, Maryland law not only permits a constitutional challenge to a statute to be raised in the course of an administrative proceeding; case law generally requires that such a challenge, whether facial or as applied, must be initially litigated in the administrative proceeding.

I do believe our Dead Eyed friend tried just that and got shot down as they would not entertain the federal question at the administrative hearing?

Krucam said:
It HAS gotten slightly derailed (jacked) from the original intent...

But comes full circle...

Patrick · Sep 20, 2010

A trick from Chicago's current cases, on whether the SAF has any members who are MD residents:

If the Court denies Defendants’ Motion to Dismiss on abstention grounds, Defendants will request the opportunity to conduct limited discovery as to SAF’s standing to bring this action.

We should send a list of names and address to the SAF of those wiling to be deposed. "Limited" means a lot, spread over significant time.

jonnyl · Sep 20, 2010

Interesting quote from the Snowden case:

The appellant suggests that the phrase "reasonable precaution against apprehended[413 A.2d 298] danger" is the sole criterion for defining "good and substantial reason." He urges that "apprehended danger" is to be viewed from the subjective standpoint of the applicant. Relying on that premise as true, he then states that since a reasonable mind "could not reasonably conclude that Mr. Snowden is not apprehensive of danger," the Board lacked substantial evidence to deny a permit. If we accept Snowden's reasoning there would never be a time when a lawful person, fearful of his safety, would be denied a permit to carry a gun

uh, yeah, that's what we expect ....

OLM-Medic · Sep 20, 2010

Still somewhat confused. Can anyone explain?

Patrick · Sep 20, 2010

The funniest part:

Gansler Argument said:
In Count II, Plaintiffs contend that § 5-306(a)(5)(ii)’s

SAF Argument said:

requirement that handgun carry permit applicants demonstrate cause for the issuance of a permit violates Plaintiffs’ Fourteenth Amendment right to equal protection of the law, damaging them in violation of 42 U.S.C. § 1983.Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of this provision."

Click to expand...

Other than an incorporation by reference of earlier paragraphs of the Complaint, Plaintiffs do not make any factual allegations in support of Count II.

Translation: The Court should dismiss this civil rights case because the SAF are complaining about violations of a civil right, but because no Court has ruled that the civil right exists...the Court should not consider it worthy of argument.

It's a chicken and egg argument: the court should not allow the argument because no court has ruled on it.

By their logic, blacks still wouldn't be able to vote because nobody would have the ability to sue against restrictive voter-registration standards...because the right doesn't exist until it is argued in front of a court that will not consider the argument because no court has reviewed the argument...

Basically, Gansler has no defense here or is holding it in check. He's basically saying "the 14th doesn't apply here". It's not a smart move, as it opens the door to the very fact of law evaluation he wanted to avoid.

This whole document is an attempt to avoid the fight: attack procedure, process, standing and then some oddball argument that a civil right case should not be argued unless it has already been argued.

Feeling good.

Boxcab · Sep 20, 2010

Thanks Patrick.

krucam · Sep 20, 2010

OLM-Medic said:
Still somewhat confused. Can anyone explain?

Typical when you can't argue the points brought up in the initial complaint, you come up with a few smoke in mirrors arguments and ask the Judge to Dismiss the case.

This Motion will be rejected handily I predict due to a Fundamental Civil Right being issued.

I need to find out more about the Younger Abstention, and their comment

Court should decline to exercise jurisdiction over this lawsuit based on Younger abstention. Younger abstention applies when there is an ongoing state judicial proceeding that implicates important state interests and provides an adequate opportunity to present federal claims. A claimant cannot avoid Younger abstention by failing to pursue his state judicial remedies. In this case, the Court should decline jurisdiction in favor of adjudication by Maryland courts.

What ongoing state judicial proceeding??

Again, smoke in mirrors..this Motion is going nowhere.

I'd expect a response from SAF in about 5, 4, 3, 2.....

OLM-Medic · Sep 20, 2010

Thank you. What about what was said above about them not exhausting all state options first?

jonnyl · Sep 20, 2010

OLM-Medic said:
Thank you. What about what was said above about them not exhausting all state options first?

I believe that was also part of the Younger abstention. They're saying the "ongoing" doesn't need to actually be a current active case, but could essentially be between levels of appeal. They're saying because he hadn't exhausted all his state options that it was basically still ongoing.

I think from what Patrick posted above (1st quote post 823) the SAF expected this argument and already gave their reasons why Younger didn't apply here.

Bikebreath · Sep 20, 2010

Ah, Gansler and his gang are a bunch of cowards.

krucam · Sep 20, 2010

OLM-Medic said:
Thank you. What about what was said above about them not exhausting all state options first?

All state options implies MD State Court of Appeals (non-Federal). You'll see the cases that have gone this route on the previous page. They're saying Woollard hasn't taken this route to the MD Court of Appeals (following his rejection by the MDSP Review Board).

Again, this Motion to Dismiss will have a very short life I believe. Our Fundamental Civil Rights are at question here....gawd I love saying that...

As mentioned by Patrick, Chicago has/is using the issue of the SAF not having Standing as well, I'll dig into that one but I guarantee you SAF already has that argument covered. There is a case in Georgia as well where they used the "No Standing" argument...

NateIU10 · Sep 20, 2010

krucam said:
All state options implies MD State Court of Appeals (non-Federal). You'll see the cases that have gone this route on the previous page. They're saying Woollard hasn't taken this route to the MD Court of Appeals (following his rejection by the MDSP Review Board).

Again, this Motion to Dismiss will have a very short life I believe. Our Fundamental Civil Rights are at question here....gawd I love saying that...

As mentioned by Patrick, Chicago has/is using the issue of the SAF not having Standing as well, I'll dig into that one but I guarantee you SAF already has that argument covered. There is a case in Georgia as well where they used the "No Standing" argument...

Agreed. SAF can easily meet the three prongs of the associational standing:

An organization is deemed to have associational standing when it can show that: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Whether it be through limited discovery or by an amendment, SAF should throw this part out real fast.

krucam · Sep 20, 2010

Internet Archive (Docket) updated with today's events:

Woollard et al v. Sheridan et al
http://ia360701.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html

MD-Dave · Sep 20, 2010

krucam said:
All state options implies MD State Court of Appeals (non-Federal). You'll see the cases that have gone this route on the previous page. They're saying Woollard hasn't taken this route to the MD Court of Appeals (following his rejection by the MDSP Review Board).

Again, this Motion to Dismiss will have a very short life I believe. Our Fundamental Civil Rights are at question here....gawd I love saying that...

As mentioned by Patrick, Chicago has/is using the issue of the SAF not having Standing as well, I'll dig into that one but I guarantee you SAF already has that argument covered. There is a case in Georgia as well where they used the "No Standing" argument...

There is no way Gura is not prepared for Younger. He would have to know that Woolard had not gone to the State Court of Appeals. It looks like Younger has multiple tests, not just the one about exhausting all state remedies before moving on to a federal level so maybe that is where Gura is planning on arguing against it.

Gray Peterson · Sep 20, 2010

BenL said:
Could the state do a 180 "our bad", give this one guy his permit, and be done with it (for now)?

No. The denial triggers Triggers Article III standing. The MTD is without merit His renewal was denied.

Dead Eye said:
I'm sure that is possible, but then they would have to continue with "my bads", because everyone, including myself, will continue to persue the "good and substantial" issue.

If they issue it to Mr. Woollard for "Personal Protection", it must be issued to everyone. See Guillory v. Gates.

Dead Eye said:
I realize that there would be cases of such, but I also "sense" that would very difficult to persue on a continual and broad basis. For instance, they would have to catch YOU violating a carry rule, pull your permit, and then catch ME, and then catch, WHOMEVER. Do they have the resources to do that? Perhaps if they profile, or use "the list" to track you down and surveil your every movement.

I have no response to this. Remember, the right to carry is a fundamental right, and cannot be revoked short of a crime.

Dead Eye said:
Personally, I see them going the route of having you take three written exams, a physical combat training course, 90 day waiting period, and then negating it all, because you didn't spell out your middle name in full, on the application.

The exams, the combat training course, the waiting period are not in the statute. Your good and substantial reason has nothing to do with those issues. We have sheriffs out in California who think they can require whatever they want and hook that into good cause. They are educated pretty quick that they don't do that when it comes to someone pushing them to comply with the statutory law.

Those requirements would require new statutory law. A case with a TRO can be filed pretty quickly to injunct against these new provisions.

Gray Peterson · Sep 20, 2010

MD-Dave said:
There is no way Gura is not prepared for Younger. He would have to know that Woolard had not gone to the State Court of Appeals. It looks like Younger has multiple tests, not just the one about exhausting all state remedies before moving on to a federal level so maybe that is where Gura is planning on arguing against it.

Except there is already a Maryland Court of Appeals case saying that there is no RKBA outside of the home. This would be futile exercise.

Here's another problem: They suggest to the plaintiff that he should have gotten judicial review in state court in baltimore. The problem is that if they brought up Second Amendment claims in state court, and the state court denies those federal constitutional provisions, the same plaintiff cannot rebring the case to federal court, because the Maryland AG will claim res judicata and collatteral estoppel to keep it from happening.

The Maryland AG knows this, and I'm willing to bet there will be an MSJ forthcoming against the state with a reply to the MTD. Their arguments are ridiculous and do not apply to 42USC1983 litigation.

Dead Eye · Sep 20, 2010

I'm no lawyer, but this is the way my feeble mind processes all that I have read from the Gansler motion to dismiss. Am I close, or way off the mark, here?

Claims by Gansler:

Mr. Woollard:

1. Failed to file a new application, having had his permit officially revoked in November of 2009, as a result of the “Board” review and subsequent denial.

2. Jumped the gun, by filing in the Circuit Court of Maryland, rather than first filing in the Circuit Court of Baltimore County.

Motion to dismiss based on:

1. “Younger” abstention, claiming Mr. Woollard must go back to the Circuit Court of Baltimore, and complete the linear process, thus allowing Maryland to “work it out”.

2. SAF doesn’t have a “dog in the fight”, since it is neither directly effected by this case, nor is its members.

3. Plaintiffs fail to provide even minimal notice for the basis of the claim that their 14th Amendment, Equal Protection Clause, has been violated.

Questions:

1. How does SAF “bridge the gap”, so to speak, between the “Boards” denial in November of 2009, and filing suit in July 2010, and get around the State’s claim for need of a new application?

2. As a member of the SAF, as well as someone who has been “wronged” through this process, through me for example the SAF can then, therefore, claim “associational” standing, can they not?

3. Wouldn’t the fact that a HUGE disparity exists in the percentage of applicants among specific groups that are granted permits, be grounds for the Equal Protection clause, or in this case, lack thereof?

krucam · Sep 20, 2010

Abstention

OK, 1) I know it's from Wikipedia and 2) IANAL, but:
http://en.wikipedia.org/wiki/Abstention_doctrine

An abstention doctrine is any of several doctrines that a court of law might (or in some cases must) apply to refuse to hear a case, when hearing the case would potentially intrude upon the powers of another court. Such doctrines are usually invoked where lawsuits involving the same issues are brought in two different courts at the same time, particularly two different court system (e.g., federal and state courts within a federal system).

The United States has a federal court system with limitations on the cases that federal courts can hear, while each state has its own individual court system. In some instances, the jurisdiction of these courts overlaps, so a lawsuit between two parties may be brought in either or both courts. The latter circumstance can lead to confusion, waste of resources, and the appearance that one court is disrespecting the other. Both federal and state courts have developed rules determining when one court will defer to another's jurisdiction over a particular case.

Later in the link, the Younger Abstention is explained as:

Younger Abstention

Younger abstention, named for Younger v. Harris, 401 U.S. 37 (1971), is less permissive to the federal courts, barring them from hearing civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim. For example, if an individual who was charged with drug possession believes that the search was illegal, and in violation of their Fourth Amendment rights, that person may have a cause of action to sue the state for illegally searching him. However, a federal court will not hear the case until the person is convicted of the crime. The doctrine has been extended to state civil proceedings in aid of and closely related to state criminal statutes[1], administrative proceedings initiated by a State agency,[2] or situations where the State has jailed a person for contempt of court. The doctrine applies even where the state does not bring an action until after the person has filed a lawsuit in federal court, provided that the federal court has not yet undergone proceedings of substance on the merits of the federal suit.[3]

There are three exceptions to Younger abstention:

* 1. Where the prosecution is in bad faith (i.e. the state knows the person to be innocent); or
* 2. Where the prosecution is part of some pattern of harassment against an individual; or
* 3. Where the law being enforced is utterly and irredeemably unconstitutional (e.g., if the state were to pass a law making it a crime to say anything negative about its governor under any circumstances).

In my view, the State has introduced a potentially viable snag here against us. We definitely do not qualify for Exception *3 yet.

Gura/Hansel/SAF to the rescue?...ASAP! I'm a little uneasy and am mildly impressed with the State's response after digging. I'll do some more.

It is plainly obvious that this was done only to allow them time to further their arguments on legit grounds, ie why it is ok to infringe on individual's Civil Rights.

They're digging in and no matter which way this goes in District Court, it's headed to Richmond and the 4th Circuit after it is decided.

SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL UPDATED 3-5-12

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