Peruta v. County of San Diego (CCW Case)

krucam · Nov 17, 2010

Patrick said:
Officially it only applies in the southern district of California. Unofficially it would be big news all around, particularly for those of us in places where 'good and substantial cause' applies. And especially in MD because so many of our gun laws were outright cribbed from CA.

Our local district court may or may not agree with the decision, but a win in Peruta would end the argument from the antis that "no court since Heller has ruled in favor of public carry as a fundamental right."

This would be the first case nationwide in federal court to directly address the question we want answered. Everything until now has been 2A related issues like felon possession, gun ranges, etc.

It is more likely to influence cases where the merits have not yet been argued. This would include MD, NC and NY. The defendants in those cases have spent so long delaying the actual question (NC being a most recent exception) that a win in Peruta would be most favorably timed. This means Gansler's delaying tactics in Woollard work somewhat to our advantage. You can call that backfire on his part. And NY.

Again, nothing says a judge needs to heed the direction of another court. But split decisions in different circuits (these cases are not there yet) do lead a path directly to the Supreme Court.

What Patrick said...although he is more of a pessimist, I'm more of an optimist...

The way this appears to be heading will be a wake up call for all of the Carry suits out there: Woollard (MD), Palmer (DC), Richards nee Sykes (CA), Kachalsky (NY), Jacobs (CA) and others.

This Judge has already written a masterful order in denying the Jan MTD. Her (and clerks) writings are inspiring to me and the final Opinion should be more of the same. This will be valid Case Law to take to the bank anywhere. Not binding, but what will be a well thought out argument for Self Defense being core to the 2A, Bear being protected, Intermediate at worst for Scrutiny.

This is going to be great....
($ to Pluto)

C'mon Palmer...

teratos · Nov 17, 2010

Thanks for the answers, oh learned gurus :bowdown:

I would think it would establish precedent. Then there would be a snowball effect. Of course, the would make senses......and this is law....so I ask.

Patrick · Nov 17, 2010

krucam said:
What Patrick said...although he is more of a pessimist, I'm more of an optimist...

Ouch.

I think we're all in agreement how this show ends. It's just a matter of how long it takes. I'd rather be surprised to the upside. I still say two more years before we see something from the USSC. And a year before Woollard hits the 4th.

The way this appears to be heading will be a wake up call for all of the Carry suits out there: Woollard (MD), Palmer (DC), Richards nee Sykes (CA), Kachalsky (NY), Jacobs (CA) and others.

This Judge has already written a masterful order in denying the Jan MTD. Her (and clerks) writings are inspiring to me and the final Opinion should be more of the same. This will be valid Case Law to take to the bank anywhere. Not binding, but what will be a well thought out argument for Self Defense being core to the 2A, Bear being protected, Intermediate at worst for Scrutiny.

This is going to be great....
($ to Pluto)

C'mon Palmer...

That was a great response. It could have been written on MDShooters, except for the solid grammar and general lack of scatological humor.

She went much further in her response than required. It was clearly a message being delivered. All she has to do was gloss over why the case had merit and deny the Sheriff's Motion To Dismiss. The easy answer would have been "Due to Heller, this is now a case of first impression. It is worth exploring." Done.

Instead she wrote a manifesto on the right to carry in public and to afford 2A strict Scrutiny.

Yeah, I caught the subtext on clerks and whatnot over at CalGuns. I have a buddy who clerked at the federal level. There is not a judge in this land who writes their own briefs or decisions. Federal judges and their clerks share about the closest intellectual relationship that exists between co-workers in this nation. That motion was hers.

I think 2011 will be a great year. Hell, I though 2010 was already a great one. Peruta is hopefully going to be a nice piece of cake before the holidays.

EDIT: an additional thought on Palmer...that case is probably already baked in the judges mind. Unless he is just now looking at it (possible with that mess he dealt with this summer), Peruta probably won't weigh heavy. But everything about the schedule on that case is so awkward, we might not hear anything there for another year.

krucam · Nov 17, 2010

Patrick said:
Ouch.

I think we're all in agreement how this show ends. It's just a matter of how long it takes. I'd rather be surprised to the upside. I still say two more years before we see something from the USSC. And a year before Woollard hits the 4th. 3 months tops for Woollard going to the 4th given Ezell's accelerated movement and his motions in Kachalsky, Gura isn't Fuggin' around that long, he's looking for another rendezvous at SCOTUS...

That was a great response. It could have been written on MDShooters, except for the solid grammar and general lack of scatological humor.

She went much further in her response than required. It was clearly a message being delivered. All she has to do was gloss over why the case had merit and deny the Sheriff's Motion To Dismiss. The easy answer would have been "Due to Heller, this is now a case of first impression. It is worth exploring." Done. Reasons to be "Optimistic"!

Instead she wrote a manifesto on the right to carry in public and to afford 2A strict Scrutiny. If you people haven't read it, do so: http://ia341315.us.archive.org/2/items/gov.uscourts.casd.308678/gov.uscourts.casd.308678.7.0.pdf

Yeah, I caught the subtext on clerks and whatnot over at CalGuns. I have a buddy who clerked at the federal level. There is not a judge in this land who writes their own briefs or decisions. Federal judges and their clerks share about the closest intellectual relationship that exists between co-workers in this nation. That motion was hers. Agreed

I think 2011 will be a great year. Hell, I though 2010 was already a great one. Peruta is hopefully going to be a nice piece of cake before the holidays.

EDIT: an additional thought on Palmer...that case is probably already baked in the judges mind. Unless he is just now looking at it (possible with that mess he dealt with this summer), Peruta probably won't weigh heavy. But everything about the schedule on that case is so awkward, we might not hear anything there for another year. Palmer is quite the enigma

Emphasis added....

Trapper · Nov 17, 2010

HOLY SHIT!!!!! Someone who actually gets it!!! Almost makes me feel good about our chances...

Really, if you haven't read it, do so: http://ia341315.us.archive.org/2/ite...308678.7.0.pdf

Freaking awesome!!

(p.s. - Thanks guys, it made my day to learn that at least one judge, somewhere, would read the entire Heller decision and not just "in the home".)

Patrick · Nov 18, 2010

We talked about this a while ago in the Woollard thread (or maybe Palmer?)...

The paragraph most frequently quoted by the anti's when it comes to concealed carry is one that does say "presumptively lawful are regulations against concealed carry". BUT...the anti's then forget to mention the reasoning for this presumption. Courts don't just say "because I said so." They give reasons.

They explained the presumptively lawful statement through four prior cases, such as Nunn in Georgia. In each case, CCW restrictions were lawful only because there was an alternative means of carry available (open). In each case cited by the Supreme Court, it was clearly written that a complete abolishment of the right to carry in public would be anathema to the Constitution and 2A.

Essentially, the Supreme Court was saying that a state has a choice in the manner of carry. Meaning they can restrict open or concealed. Some in the gun community have reached a similar conclusion but also think this says open carry is "Constitutional Carry" and CCW is an optional extension. These folks think OC is protected no matter what. These folks are wrong. The state can choose either/or if it wants. We'll deal with that later.

For the anti-rights community, quoting the Heller decision out of context is playing bingo. Some judges will want to agree with the anti-rights people. In such cases, they can just say no and toss it up the chain. There is plenty there to do so.

But for judges who do not have such a viewpoint, they are as likely as not going to come back with a view similar to ours. Judge Irma Gonzales appears to be one of them.

That is why Palmer is so interesting to me. Judge Kennedy (not of those Kennedy's) has a reputation as a serious civil rights expert. I want to see his views on the matter, as I think they will weigh heavy in other courts.

Boxcab · Dec 6, 2010

(Before X-mas?)

krucam · Dec 6, 2010

I'd tell you to be patient...if I wasn't so impatient myself. Nothing in Pacer or on Calguns at noon....

I'll leave this with you, from the Peruta Oral arguments, regarding potential impact of citizens carrying:

If 5% of the Ducks shoot back, “NO ONE” would go Duck hunting.

Boxcab · Dec 6, 2010

Thanks for all your hard work Krucam, it is very much appreciated.

-Boxcab

Patrick · Dec 6, 2010

Boxcab said:
(Before X-mas?)

The judge said 3-4 weeks, 3-4 weeks ago. She seemed clear that she would release an opinion before the holidays. She didn't say it specifically, but the window she chose was well before Christmas.

But as Krucam says...she can do what she wants. If she wants more time she'll take it. We're all waiting on this one. It's one of the first federal responses in a line of cases directly ruling on "the big question".

krucam · Dec 6, 2010

There ARE a few new entries on the Docket just uploaded: http://ia341314.us.archive.org/2/items/gov.uscourts.casd.308678/gov.uscourts.casd.308678.docket.html

2010-11-30 62 0 NOTICE of Lodgement of Recent Authority In Support of Plaintiffs' Motion for Partial Summary Judgment by Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson, Edward Peruta (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Michel, Carl). (jah). (Entered: 11/30/2010)
62 1 Exhibit A
62 2 Exhibit B
2010-12-01 63 0 Minute Entry for proceedings held before Magistrate Judge Bernard G. Skomal: The MSC will be reset, if necessary, after a decision on the pending motion for summary judgment.(asz) (Entered: 12/01/2010)

62, 62-1 and 62-2 will be available shortly. Nothing earth shattering....

Patrick · Dec 6, 2010

US v Ligon did assign strict scrutiny to 2A; even as it denied plaintiff's request for guns for being an ex-felon. No new arguments, but it's nice to note that a federal court applying strict scrutiny to 2A is no longer earth shattering...

krucam · Dec 10, 2010

As people are on pins and needles in California awaiting the Opinion in this one (this week, perhaps next), the Plaintiff Edward Peruta punched into Calguns.net a few minutes ago and left the following:

Out of respect for the legal team representing me in this matter, I will let them have first crack at announcing any decision when it is released by the court.

I have been kept aware of what is happening and understand the reason(s) for the current delay.

Have faith, the decision is coming soon.

For everyone who has offered comments and support,

THANK YOU

Inigoes · Dec 10, 2010

Ironically,

there is a hint of optimism in the released statement :thumbsup:

krucam · Dec 10, 2010

MSJ DENIED!!!!

PDF will be coming shortly.

krucam · Dec 10, 2010

Not Good.

12/10/2010 65 CLERK'S JUDGMENT IT IS SO ORDERED AND ADJUDGED that the Court concludes that Defendant's policy does not infringe on Plaintiffs' right to bear arms or violate equal protection, the right to travel, the Privileges and Immunities Clause of Article IV, or due process. Accordingly, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendant's Motion for Summary Judgment. (lmt) (Entered: 12/10/2010)

krucam · Dec 10, 2010

Here's the Denial Opinion...damn.

teratos · Dec 10, 2010

Where to now...9th Circuit?

This does not make me smile this evening.

Patrick · Dec 10, 2010

She assigned intermediate scrutiny to bearing of arms outside the home, buying into the anti-gun hyperbole that Heller only protected 2A "in the home".

Frankly, I am surprised based on her previous ruling.

That said, this case is going all the way.

jonnyl · Dec 10, 2010

It isn't good news...BUT.. they seemed to base a lot of their denial on the fact that some could legally carry an unloaded gun and ammunition and could load it if the need for self defense arose. But dang, they keep acting like the 2A says "...shall not be infringed inside the home"

I think that's a horrible final answer, but in Maryland we don't have the unloaded carry option.

EDIT: Still reading, but sheesh in the bottom of page 12 she completely got on-board with the "interest balancing" arguments. Not only shouldn't that be part of the equation anyway, but their arguments are provably wrong... :mad54:

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