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Old Yesterday, 11:50 AM #81
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It was decided differently in 2 different Circuits post Woollard

With the DC ruling in Wrenn, we now have a split that SCOTUS can rule on. Woolard was decided before Wrenn, so it doesn't create the split needed. Previously decided cases can't be used to apply for CERT as I understand this.
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Old Yesterday, 12:00 PM #82
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Quote:
Originally Posted by Abulg1972 View Post
But the 4th Circuit has already ruled on this issue, so there is already a split.

You can bring a new case to try different facts and determine whether the standard was properly applied, but you can't bring a new case to try the same legal issue of whether "good and substantial" is constitutional. That issue has been decided.
Of course you can bring a new suit, even a facial suit, if the avowed purpose is to seek to have that otherwise binding precedent overturned. That is what these complaints expressly allege as the purpose. None of these circuit decisions (2d, 3d, and 4th) is binding on the Supreme Court. Denial of cert in those cases is not precedent on the question and all those denials took place prior to Wrenn. The whole point of all three complaints is to provide a case or controversy for asking the Supreme Court to review the split.
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Old Yesterday, 12:23 PM #83
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Originally Posted by esqappellate View Post
Of course you can bring a new suit, even a facial suit, if the avowed purpose is to seek to have that otherwise binding precedent overturned. That is what these complaints expressly allege as the purpose. None of these circuit decisions (2d, 3d, and 4th) is binding on the Supreme Court. Denial of cert in those cases is not precedent on the question and all those denials took place prior to Wrenn. The whole point of all three complaints is to provide a case or controversy for asking the Supreme Court to review the split.
Sure . . . you can bring a new suit in federal court to challenge settled law, but you're likely to receive sanctions.

The 4th Circuit Court of Appeals has overturned the District Court and ruled that Maryland's "good and substantial reason" is a constitutional standard. You're telling me that you'd feel comfortable advising a client to bring a new suit in the District Court for the District of Maryland to challenge whether the "good and substantial reason" standard is constitutional? You're braver than me.
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Old Yesterday, 12:33 PM #84
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Originally Posted by Abulg1972 View Post
Sure . . . you can bring a new suit in federal court to challenge settled law, but you're likely to receive sanctions.

The 4th Circuit Court of Appeals has overturned the District Court and ruled that Maryland's "good and substantial reason" is a constitutional standard. You're telling me that you'd feel comfortable advising a client to bring a new suit in the District Court for the District of Maryland to challenge whether the "good and substantial reason" standard is constitutional? You're braver than me.
Bringing a new suit for purposes of seeking reversal of existing circuit precedent by the Supreme Court is not sanctionable conduct. See ABA Model Rules of Professional Responsibility, Rule 3.1:

Rule 3.1: Meritorious Claims & Contentions
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Rule 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Here the "good faith argument" (set out expressly in the complaint) is that the 4th Circuit erred in Woollard for the reasons set forth by the D.C. Circuit in Wrenn on the constitutionality of a "good reason" requirement. The court, of course, will adhere to Woollard (unless they decide to go en banc), but that is merely the vehicle for seeking SCT review of the circuit split created by Wrenn on this very question. No court will sanction counsel for that argument. And yes, I would be perfectly comfortable in representing a client and making that argument. Indeed, this now extant circuit conflict could well serve as a basis for seeking initial en banc review in the 4th Circuit under Rule 35 of the Federal Rules of Appellate Procedure. When I worked at Civil Appellate at DOJ, we conducted appeals for precisely this reason of getting en banc review of circuit conflicts that had developed subsequent to the decision that was circuit precedent. And it worked. See, e.g., Detroit Free Press Inc. v. United States Department of Justice, 829 F.3d 478 (6th Cir. 2016) (en banc).
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Old Yesterday, 01:21 PM #85
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Quote:
Originally Posted by esqappellate View Post
Bringing a new suit for purposes of seeking reversal of existing circuit precedent by the Supreme Court is not sanctionable conduct. See ABA Model Rules of Professional Responsibility, Rule 3.1:

Rule 3.1: Meritorious Claims & Contentions
Advocate
Rule 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Here the "good faith argument" (set out expressly in the complaint) is that the 4th Circuit erred in Woollard for the reasons set forth by the D.C. Circuit in Wrenn on the constitutionality of a "good reason" requirement. The court, of course, will adhere to Woollard (unless they decide to go en banc), but that is merely the vehicle for seeking SCT review of the circuit split created by Wrenn on this very question. No court will sanction counsel for that argument. And yes, I would be perfectly comfortable in representing a client and making that argument. Indeed, this now extant circuit conflict could well serve as a basis for seeking initial en banc review in the 4th Circuit under Rule 35 of the Federal Rules of Appellate Procedure. When I worked at Civil Appellate at DOJ, we conducted appeals for precisely this reason of getting en banc review of circuit conflicts that had developed subsequent to the decision that was circuit precedent. And it worked. See, e.g., Detroit Free Press Inc. v. United States Department of Justice, 829 F.3d 478 (6th Cir. 2016) (en banc).
I wasn't referring to sanctions by Bar Counsel. I was referring to the decent possibility that the court would find the suit to be frivolous and impose monetary sanctions on the plaintiff and counsel - e.g., paying the State's attorneys' fees, etc.

We must all assume that the Court of Appeals for the 4th Circuit thoroughly considered the relevant issues when it concluded that the good and substantial standard is constitutional. In light of that, to me, the argument that "you got it wrong. See what the D.C. Circuit did" seems a little risky. At a minimum, I would expect that the new plaintiff's circumstances were different enough to warrant a factual/application challenge.
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Old Yesterday, 01:43 PM #86
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I know that there is a judicial procedure (by which I mean, the stars must align, there must be a sufficient number of circuits in conflict, the issue has to be right, etc., etc.) that must be followed before cases get before the SCOTUS and I know that, for arguably good reason, the Court generally won't take up an issue until it has the "right" case, but I seriously wish that the Court would just decide these issues - rule on the constitutionality of bans on assault weapons and "high capacity" magazines, and right to carry. Think of all the money, energy, violence, polarization, etc. that the issues have required, caused, etc. and will continue to require, cause, etc.

I almost think it's judicial negligence, if there were such a thing, for the Court to ignore these cases.
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Old Yesterday, 01:53 PM #87
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Quote:
Originally Posted by Abulg1972 View Post
I know that there is a judicial procedure (by which I mean, the stars must align, there must be a sufficient number of circuits in conflict, the issue has to be right, etc., etc.) that must be followed before cases get before the SCOTUS and I know that, for arguably good reason, the Court generally won't take up an issue until it has the "right" case, but I seriously wish that the Court would just decide these issues - rule on the constitutionality of bans on assault weapons and "high capacity" magazines, and right to carry. Think of all the money, energy, violence, polarization, etc. that the issues have required, caused, etc. and will continue to require, cause, etc.

I almost think it's judicial negligence, if there were such a thing, for the Court to ignore these cases.
I couldn't agree with you more!
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Old Yesterday, 02:22 PM #88
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Quote:
Originally Posted by dblas View Post
Your dues goes to NRA, not NRA-ILA, so they don't fund any lawsuits.

If your donations are specifically to NRA-ILA, then they go to fund the lawsuits, if not, then no they don't.

If you want to support NRA-ILA lawsuits the donations need to be made specifically to NRA-ILA.
Yeah, I donate specifically to the ILA for stuff like this. Here's hoping the lawsuit makes some headway.
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