Binderup en banc decision A WIN

esqappellate · Sep 7, 2016

this is important.

Blaster229 · Sep 7, 2016

174 pages. Quite the read

I stopped on page 40.

Allen65 · Sep 7, 2016

Wow. Not only is it a win under intermediate scrutiny, it was en banc.
Certainly nobody wants violent felons possessing weapons, but at least now there is a legal test to determine whether someone is truly dangerous or is just an administrative offender. Too bad the decision wasn't in 4th Circuit.

danb · Sep 7, 2016

From the 3rd circuit, even.

esqappellate · Sep 7, 2016

Allen65 said:
Wow. Not only is it a win under intermediate scrutiny, it was en banc.
Certainly nobody wants violent felons possessing weapons, but at least now there is a legal test to determine whether someone is truly dangerous or is just an administrative offender. Too bad the decision wasn't in 4th Circuit.

It will be persuasive precedent in all the circuits, even the more so because it was en banc. What made it interesting for MD is that one of the plaintiffs was convicted under MD law, Criminal Law 4-203, of carrying without a permit. While that crime is punishable by more than 2 years and presumptively disqualifying under Section 922, the court held it was not a serious enough offense as applied to that plaintiff and thus held that Section 922 disqualification was unconstitutional as applied to that plaintiff. That's a big win.

motorcoachdoug · Sep 7, 2016

WOW. Now how can we use this here in MD I wonder?

esqappellate · Sep 7, 2016

motorcoachdoug said:
WOW. Now how can we use this here in MD I wonder?

You won't have to use it (the actual holding) ever if you never get convicted of a disqualifying crime...... It is good to know that an as applied challenge can be successfully mounted, to a violation of 4-203 even. Much better is not to have the problem in the first place, viz., don't carry illegally.

Knuckle Dragger · Sep 7, 2016

This will be really helpful in the first circuit.

esqappellate · Sep 7, 2016

Knuckle Dragger said:
This will be really helpful in the first circuit.

And in the Sixth Circuit in the pending en banc decision in Tyler

swinokur · Sep 7, 2016

https://www.washingtonpost.com/news...tm_term=.58e51b971186&wpisrc=nl_volokh&wpmm=1

danb · Sep 7, 2016

swinokur said:
https://www.washingtonpost.com/news...tm_term=.58e51b971186&wpisrc=nl_volokh&wpmm=1

If the government chooses to petition the Supreme Court for review (a decision that it can wait to make until after the election), it’s likely that the court will agree to hear the case.

Emphasis mine.

GTOGUNNER · Sep 7, 2016

Heller, Heller, Heller!

redeemed.man · Sep 7, 2016

esqappellate said:
You won't have to use it (the actual holding) ever if you never get convicted of a disqualifying crime...... It is good to know that an as applied challenge can be successfully mounted, to a violation of 4-203 even. Much better is not to have the problem in the first place, viz., don't carry illegally.

Can a non prohibited person actually carry illegally being that the Constitution is the supreme law of the land? I say it is the government's that infringe that are breaking the law. Just my two cents

GTOGUNNER · Sep 7, 2016

boundlessdyad said:
Can a non prohibited person actually carry illegally being that the Constitution is the supreme law of the land? I say it is the government's that infringe that are breaking the law. Just my two cents

I think that is the ultimate goal of these law suits. But then again, not in my lifetime.

esqappellate · Sep 7, 2016

danb said:
Emphasis mine.

The as- applied opinion is far too limited in its impact, applying only to these two plaintiffs and only to non-violent misdemeanors committed decades ago, to warrant cert. I tend to doubt that cert. will be sought or, if it is, that it would be granted

Knuckle Dragger · Sep 7, 2016

esqappellate said:
The as- applied opinion is far too limited in its impact, applying only to these two plaintiffs and only to non-violent misdemeanors committed decades ago, to warrant cert. I tend to doubt that cert. will be sought or, if it is, that it would be granted

It's a limited ruling, yes. But I tend to think it will open the floodgates for similar as-applied challenges. There are already a number in the pipeline and I can't help but think there will be a significant pile-on effect.

The question is: how does this scale? Without a fundamental change to 922 or a judicial rethinking of who can and cannot be a prohibited person, are we left with a scenario were everyone with a long ago forgotten non-violent, minor misdemeanor must go to court to have their rights restored?

I'm just not sure where to go from here either than to just fill up the judicial pipeline.

esqappellate · Sep 8, 2016

Knuckle Dragger said:
It's a limited ruling, yes. But I tend to think it will open the floodgates for similar as-applied challenges. There are already a number in the pipeline and I can't help but think there will be a significant pile-on effect.

The question is: how does this scale? Without a fundamental change to 922 or a judicial rethinking of who can and cannot be a prohibited person, are we left with a scenario were everyone with a long ago forgotten non-violent, minor misdemeanor must go to court to have their rights restored?

I'm just not sure where to go from here either than to just fill up the judicial pipeline.

Well the pipeline is limited because a lot of states (not all) have procedures in place that would allow a person to seek restoration of their rights, including their 2A rights. Those persons have an avenue. The 3d Circuit opinion would apply only to those states that afford no such remedies. Will there be a lot? Not so sure about that, but the mere speculative nature of that inquiry militates against cert. In writing the Opp (should a petition be filed), counsel would presumably urge the Court to let the matter "percolate" in the lower courts, as this case involves only as applied challenge by two individuals and only then for non-serious offenses of the type that could be entertained by the AG if Congress would ever fund Section 925(c).

wolfwood · Jan 9, 2017

From: cmecf_no_reply@ca3.uscourts.gov
Sent: Friday, January 6, 2017 2:48 PM
Subject: 14-4549 Daniel Binderup v. Attorney General United States "Supreme Court Notice Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.

Third Circuit Court of Appeals

Notice of Docket Activity

The following transaction was filed on 01/06/2017
Case Name: Daniel Binderup v. Attorney General United States
Case Number: 14-4549

Docket Text:
NOTICE from U.S. Supreme Court. Petition for Writ of Certiorari filed by Attorney General United States of America on 01/05/2016 and placed on the docket on 01/05/2017. Supreme Court Case No. 16-847. [14-4549, 14-4550] (AWI)

Notice will be electronically mailed to:

Honorable Michael A. Chagares, Circuit Judge
Honorable Joseph A. Greenaway Jr., Circuit Judge
Honorable Cheryl Ann Krause, Circuit Judge
Honorable Theodore A. McKee, Circuit Judge
Honorable Richard L. Nygaard, Circuit Judge
Honorable L. Felipe Restrepo, Circuit Judge
Honorable Jane R. Roth, Circuit Judge
Honorable Patty Shwartz, Circuit Judge
Honorable D. Brooks Smith, Chief Judge
Honorable Thomas I. Vanaskie, Circuit Judge

Notice will be stored in the notice cart for:

Honorable Thomas I. Vanaskie, Circuit Judge

wolfwood · Jan 9, 2017

does anyone have access to the cert petition? I would love to read it

motorcoachdoug · Jan 9, 2017

OH BOY!!! why am I not surprised???? Wonder if Trump will have Sessions repeal or ask the SCOTUS to disregard it? would love to read it as well.

Binderup en banc decision A WIN

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