Jackson v. City & County of San Francisco

Maestro Pistolero · Oct 8, 2013

NOT impressed with NRA attorney. Heller directly controverts this ordinance with its invalidation of the trigger lock requirement WITHOUT a standard of review. NRA has thus far (1/2 through) missed several opportunities to point that out. The Heller court literally ridiculed the idea that a locked gun could be useful at all for self-defense in the middle of the night.

Also, failing to point out in the discussion of what constitutes an unacceptable delay that life or death in a gunfight usually turns on MILLISECONDS, not SECONDS, was a mistake in my opinion. The justices ask what was an acceptable delay, and the answer should have been flatly ZERO seconds followed by an explanation as to why. The first person to fire his weapon, if only a tenth of a second earlier, is exponentially more likely to survive the fight. This is a critical point, based on nothing more than simple physics, even in a discussion involving substantial burden. There is no greater burden than the loss of ones life or limb.

I just finished. NRA finally got to Heller's admonition that the right is to a gun for immediate self defense. I would have liked to see a point driven home a bit more: "I would suggest to the the court that the word immediate means nothing if not without any delay". Also there was NO reference to Heller's invalidation of the trigger lock requirement.

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, ren- dering it inoperable.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful fire- arm in the home operable for the purpose of immediate self-defense.

Rarely is the guidance from SCOTUS more on point than is Heller's guidance vis a vi Jackson. I simply cannot believe this point was not made at orals.

Al Norris · Oct 8, 2013

Maestro, you forgot to post a link to the orals: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011334

ETA: Chuck Michel is the NRA attorney. It appears he was having an "off" day. As to why he didn't hammer at the locked firearm clause of the ordinance, it was hammered in all the briefs at District and at Appeals. The District Court choose to ignore it; "If it saves one child," kind of thing.

Benanov · Oct 8, 2013

Al Norris said:
Maestro, you forgot to post a link to the orals: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011334

ETA: Chuck Michel is the NRA attorney. It appears he was having an "off" day. As to why he didn't hammer at the locked firearm clause of the ordinance, it was hammered in all the briefs at District and at Appeals. The District Court choose to ignore it; "If it saves one child," kind of thing.

People are allowed to have off days, but man, what a poor time to have one.

Maestro Pistolero · Oct 8, 2013

Al Norris said:
Maestro, you forgot to post a link to the orals: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011334

ETA: Chuck Michel is the NRA attorney. It appears he was having an "off" day. As to why he didn't hammer at the locked firearm clause of the ordinance, it was hammered in all the briefs at District and at Appeals. The District Court choose to ignore it; "If it saves one child," kind of thing.

Thanks for the link, Al. Now people won't think I was hallucinating!

Understood that it was in the briefs, but to leave it unsaid at oral argument in the context of serious consideration being given by the court to the subject of whether requiring trigger locks in the home is constitutional is remiss, at best.

This was a time to call the court to task for even considering this particular inquiry with a direct quote or two from the holding. There are certainly plenty of unresolved questions in Heller's wake, but this is not one of them, and the court should be held to task on it whether at oral argument or in briefs. This is just my (probably-not-humble-enough-non-lawyer) opinion.

Brooklyn · Oct 8, 2013

Maestro Pistolero said:
Thanks for the link, Al. Now people won't think I was hallucinating!

Understood that it was in the briefs, but to leave it unsaid at oral argument in the context of serious consideration being given by the court to the subject of whether requiring trigger locks in the home is constitutional is remiss, at best.

This was a time to call the court to task for even considering this particular inquiry with a direct quote or two from the holding. There are certainly plenty of unresolved questions in Heller's wake, but this is not one of them, and the court should be held to task on it whether at oral argument or in briefs. This is just my (probably-not-humble-enough-non-lawyer) opinion.

Well it is the 9th.. So its going upstairs to become nation wide, but only if they rule against us.

Now I have not yet had a chance to listen, but when the court is clearly not listening ( body language ) Does it pay to swing for the fences, and give the opposition a look at the playbook ...

There is going to be a next time I would think ..

Judges don't like to be lectured -- that I know ( IANAL)

This court is most like not going to accept " zero seconds" .

Now I think it is stupid to require locks if he are no kids at all in the home.. I would start with that and work up to zero seconds..

press1280 · Dec 12, 2014

Update-Jackson lost at CA9, they have just filed for cert from SCOTUS: http://michellawyers.com/wp-content/uploads/2013/04/Petition-for-Writ-of-Certiorari.pdf

Paul Clement is the attorney for Jackson. They are going to appeal the locked storage/carry ordinance only, making it a VERY narrow case, although they do want SCOTUS to address all the weak opinions that the lower courts by and large have been putting out.

wolfwood · Dec 12, 2014

Its interesting that they did not appeal the ammunition section of their appeal.

krucam · Dec 12, 2014

Yes, VERY narrowly tailored but the issue they're bringing forward (ready/operable firearm IN THE HOME) should be a slam dunk....assuming they take the case up....

N3YMY · Dec 12, 2014

EL1227 said:
Of course, your significant other may object.

Is that your sidearm or are you happy to see me...?

:lol:

press1280 · Dec 12, 2014

wolfwood said:
Its interesting that they did not appeal the ammunition section of their appeal.

I interpret that as needing a SCOTUS cert grant and win in the worst way possible, even if it means dropping the ammo section which would affect people outside SF.

Peaceful John · Dec 12, 2014

press1280 said:
I interpret that as needing a SCOTUS cert grant and win in the worst way possible, even if it means dropping the ammo section which would affect people outside SF.

If there is no right in CA9 to have an easily available firearm in the home, ammo selection becomes less important.

Inigoes · Dec 12, 2014

krucam said:
Yes, VERY narrowly tailored but the issue they're bringing forward (ready/operable firearm IN THE HOME) should be a slam dunk....assuming they take the case up....

It should be GVR'd because Heller dealt with the same exact issue, having operable firearms in the home.

Kharn · Dec 12, 2014

I agree, it would be an easy GVR.

kcbrown · Dec 13, 2014

Predicting that SCOTUS will deny cert, as they have with every other 2A case.

If they take this, it should be a slamdunk for our side, I'd think.

The nature of the case is such that if they deny cert here, I'd expect that to pretty much cement the notion that they'll deny cert to all 2A cases.

wolfwood · Dec 13, 2014

kcbrown said:
Predicting that SCOTUS will deny cert, as they have with every other 2A case.

If they take this, it should be a slamdunk for our side, I'd think.

The nature of the case is such that if they deny cert here, I'd expect that to pretty much cement the notion that they'll deny cert to all 2A cases.

Typically I don't cross pollinate but Fabio has a point. Heller was about a complete ban for self defense. This is about a 3-4 second delay in getting a lock box open. It may take the actual plaintiffs longer than that but no evidence was introduced that it in fact does take any longer than 3-4 seconds

kcbrown · Dec 13, 2014

wolfwood said:
Typically I don't cross pollinate but Fabio has a point. Heller was about a complete ban for self defense. This is about a 3-4 second delay in getting a lock box open. It may take the actual plaintiffs longer than that but no evidence was introduced that it in fact does take any longer than 3-4 seconds

It's an additional 3-4 seconds once you get to the safe, and presumes that your safe is one that doesn't require some coordination on your part to open. Even a keypad can be a bit of a challenge when you're in a highly excited state, as is likely when you're faced with imminent attack. Fumble the combination and you have additional delay in perhaps the most time-critical situation one can be put into. Therein lies the problem.

The plain fact is that the law in question reduces the chance of successful self-defense, period. That means that for at least some people, whereas before they would have prevailed in their self-defense encounter, with the law in place they will fail in their encounter. Such a law guarantees that at least some people will die because of it with sufficient time. Such is the nature of detrimental statistical changes such as this. And whenever that is the case with respect to self-defense, there had better be a damned good reason for it, one that is clearly more important than personal self-defense in both scope and nature. The state otherwise has no business making self-defense more difficult.

If we're not already arguing the above, then we're failing in our approach. If we are arguing the above and SCOTUS denies cert, then I'd have to consider that nearly a killing blow to the notion that SCOTUS will grant cert to a 2A case. Not quite a killing blow, but only because carrying the firearm on one's person is not enjoined.

wolfwood · Dec 13, 2014

That's not what was plead to the lower court. All that was plead was that lock box = delay. The City's 3-4 second evidence was not rebutted. If perhaps on remand it is shown that lock box = 2-3 minutes as applied to these clients then on a subsequent appeal there may be a different result.

kcbrown · Dec 13, 2014

wolfwood said:
That's not what was plead to the lower court. All that was plead was that lock box = delay. The City's 3-4 second evidence was not rebutted. If perhaps on remand it is shown that lock box = 2-3 minutes as applied to these clients then on a subsequent appeal there may be a different result.

So we probably blew it, then.

Funny, I thought we had the "best" litigators on this.

Maestro Pistolero · Dec 14, 2014

My understanding of the word 'immediate' is that it means without any delay whatsoever. Since a criminal will have the advantage of surprise, the two to five seconds it would take to draw a ready weapon from a holster on ones person may be too slow to survive a threat.

Add to that the time it takes to get to a safe, open it, then retrieve and fire a weapon, and the right to self defense would be obviated.

There is a reason police officers have their weapons drawn and pointed BEFORE a high threat suspect has a chance to draw his/her weapon. It is because milliseconds, not seconds determine who survives a gunfight. Though a citizen may be far less likely to encounter that criminal, once encountered, it is the same criminal who is just as dangerous.

Elliotte · Dec 15, 2014

Inigoes said:
It should be GVR'd because Heller dealt with the same exact issue, having operable firearms in the home.

They argued that, but they also argued that they take the case for a full hearing so that the court can smack down the 2A-Two-Step that the lower courts have used to get around Heller & McDonald.

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