Five Gun Rights Cases to Watch in CA

[Nametag]

@Bone

I was also surprised that Kozinski is no longer chief judge. I assumed it worked like SCOTUS and chief was chief until they stepped down. Anyone know why he’s no longer chief or what the process for selecting a new one is?

Doesn’t look like this was ever answered.

[QUOTE=Wikipedia]
To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as chief judge. A vacancy is filled by the judge highest in seniority among the group of qualified judges. The chief judge serves for a term of seven years or until age 70, whichever occurs first. The age restrictions are waived if no members of the court would otherwise be qualified for the position.
[/QUOTE]

[Bone]

@Bone

Super en banc request denied.Without an extension request, there is 90 days to petition for cert. I expect them to petition for cert and for cert to be denied.

Just an update to various cases. In the Peruta case where super en banc was denied, there were two requests to extend the 90 days to petition for cert from Nov 13, 2016 first to 12.14.16 and then to 1.12.17. Both requests were granted by SCOTUS Justice Kennedy.

@Bone

Regarding Case #2, Pena v. Lindley - The decision at the district level was handed down yesterday. The challenge to the roster was defeated. The decision has already been appealed to the 9th Circuit.

A sister lawsuit filed by the National Shooting Sports Foundation concerning the impossibility of microstamping was previously ruled in favor of the state has been reinstated on appeal at the state level. From that opinion:

Civil Code section 3531 provides that “[t]he law never requires impossibilities.”
Appellants’ complaint alleges that it is impossible for a firearm manufacturer to
implement microstamping technology in compliance with Penal Code section 31910,
subdivision (b)(7)(A), because no semiautomatic pistol can be so designed and equipped.

It has been remanded for further proceedings.

Unfortunately case #1 Silvester v. Attorney General Harris was defeated on appeal to the 9th circuit. This will likely be petitioned to rehear en banc.

---

So some defeats, lots of appeals, and none of the above have been finally adjudicated. I’m hoping by the time these reach SCOTUS the court will have a full roster. The court of appeals in the 9th circuit has 29 members. Among that 29, at the beginning of 2017 there will be four vacancies that the incoming administration can also make nominations for.

[Damuri_Ajashi]

@Bone

Just an update to various cases. In the Peruta case where super en banc was denied, there were two requests to extend the 90 days to petition for cert from Nov 13, 2016 first to 12.14.16 and then to 1.12.17. Both requests were granted by SCOTUS Justice Kennedy.
A sister lawsuit filed by the National Shooting Sports Foundation concerning the impossibility of microstamping was previously ruled in favor of the state has been reinstated on appeal at the state level. From that opinion:

It has been remanded for further proceedings.

Unfortunately case #1 Silvester v. Attorney General Harris was defeated on appeal to the 9th circuit. This will likely be petitioned to rehear en banc.

---

So some defeats, lots of appeals, and none of the above have been finally adjudicated. I’m hoping by the time these reach SCOTUS the court will have a full roster. The court of appeals in the 9th circuit has 29 members. Among that 29, at the beginning of 2017 there will be four vacancies that the incoming administration can also make nominations for.

You’re the best man.

[Bone]

Case #1 Silvester v. Harris was granted a motion for extension of time to file petition for rehearing en banc and that petition was filed 2.13.17. With Harris being elected Senator, this case is now called Silvester et al v. Becerra et al.

@Bone

Regarding Case #2, Pena v. Lindley - The decision at the district level was handed down yesterday. The challenge to the roster was defeated. The decision has already been appealed to the 9th Circuit.

Oral arguments at the federal appellate level are scheduled for March 16, 2017, nearly 3000 days since the case was first filed and over 2 years since the appeal was filed.

@Bone

Just an update to various cases. In the Peruta case where super en banc was denied, there were two requests to extend the 90 days to petition for cert from Nov 13, 2016 first to 12.14.16 and then to 1.12.17. Both requests were granted by SCOTUS Justice Kennedy.

Case #5 Cert petition filed 1.12.17.

[Bone]

@Bone

Case #1 Silvester v. Harris was granted a motion for extension of time to file petition for rehearing en banc and that petition was filed 2.13.17. With Harris being elected Senator, this case is now called Silvester et al v. Becerra et al.

En Banc petition denied for Silvester v. Becerra. I predict they will petition for cert and will be denied, unfortunately. Let’s see if I’m right.

[Martini_Enfield]

All this stuff is really interesting. I think people forget US arms laws really are extraordinarily complicated and extremely illogical - I mean, how has a law requiring something that’s impossible to do not been drop-kicked into an alternate dimension where they still have Szechuan dipping sauce at McDonalds?

[Bone]

@Bone

Case #5 Cert petition filed 1.12.17.

Cert denied.

That’s pretty disappointing. Not even sure where the next carry case is or what stage it’s at. It feels like a retirement out of Ginsburg and Kennedy is the only path forward, because Roberts and Kennedy are too unreliable.

[mhendo]

I’ve said on this message board a few times before that gun ownership is one area of politics where my opinion shifted somewhat in the years after i moved to the US. I arrived from Australia as something of a gun abolitionist, believing that very few people should have guns, and then only under strict and limited circumstances.

After talking with some American gun owners online (including here at the SDMB) and in person—my next-door neighbor in Baltimore owned about 14 guns, from handguns to hunting rifles—i moderated my position somewhat, and i do have some sympathy for responsible gun owners who feel unfairly lumped in with criminals. I believe that there are plenty of gun owners in the country who really do promote responsible use, and who don’t constitute a threat to my safety just because they choose to own firearms. I also think that it would be possible, with the right will, to create a legal and policy framework that recognized this, while also taking concrete steps to reduce the number of guns in the country, and reduce gun violence.

But as long as the gun-rights agenda in the United States is so firmly in the hands of the National Rifle Association—the sort of people who produce videos like this—i will continue to cheer every setback for gun owners. Until the responsible gun owners much more openly and loudly disavow the lunatics, maybe with a new organization of their own, and with greater efforts to advocate some reasonable policies in Washington and in the states, i’m not very interested in lending my support to them.

[Whack-a-Mole]

@Scumpup

Okay, it’s a cooling off period. What evidence is there that having the cooling off period reduces criminal use of guns enough to be worth inconveniencing the purchasers who are not putting them to criminal use? Is there evidence that it has any effect at all?

@Cheesesteak

This is a fair question. It’s similar to my questions regarding Voter ID. You want to inconvenience someone in the legal exercise of their rights, you should have conducted a study prior to proposing the law. A study to identify the scope of the problem, and give you a reasonable view into the efficacy of the ‘solution’.

It seems a waiting period has no effect on gun crimes/violence but may have some effect suicides.

A study done by one researcher from Georgetown University and one from Duke University that was published in the Journal of the American Medical Association in 2000 examined the Brady Handgun Violence Prevention Act, a 1994 federal law that established a nationwide waiting period and background check for handgun sales. (The waiting period provision was later removed.)

The study concluded that the law’s waiting period was associated with reductions in the firearm suicide rate for people age 55 and older, but not associated with reductions in homicide rates or overall suicide rates.

Other research has found that people who buy handguns are at a higher risk of committing suicide during the first week after the purchase. For example, an article published in 2000 by members of the Firearm Injury Center at the Medical College of Wisconsin said a Wisconsin study found a “sharp increase” in the risk of suicide within one week of a gun purchase.

SOURCE: PolitiFact | No statistical evidence that a waiting period for handgun purchases reduces violence, lawmaker says

Is that enough to merit a delay in purchasing guns? Seems so to me but then I had a good friend commit suicide with a handgun he had purchased several days earlier so I am biased.

[Bone]

@Whack-a-Mole

It seems a waiting period has no effect on gun crimes/violence but may have some effect suicides.

I think a cooling off period would have an effect on suicides, however this specific case was about the 10 day waiting period for those that already possess firearms. As I noted in post #15:

@Bone

I believe the main driver for the cooling off period is to prevent suicide, not mass homicide. This rationale fails for those that already possess firearms as all would be sufficient to commit suicide.

From the opinion addressing the cooling off rationale:

There is no evidence that a “cooling off period,” such as that provided by the 10-day waiting period, prevents impulsive acts of violence by individuals who already possess a firearm.[35] A waiting period for a newly purchased firearm will not deter an individual from committing impulsive acts of violence with a separate firearm that is already in his or her possession.

Regarding types of firearms better suited for various purpose, the court notes:

[35]Defendant argues that because some firearms are better suited for certain purposes than other firearms, a waiting period may prevent an impulsive act of violence with the new weapon. Relying on Agent Graham’s testimony, Defendant cites the example of Shareef Allman, an individual who had several firearms, including at least one pistol, a rifle, and an assault-style weapon, and who killed nine people in Cupertino, California. See Trial Tr. at 360:13-20, 415:21-416:8. The assault-weapon was not used in the shooting. See id. at 415:17-21. The pistol was obtained legally, and it was unknown whether the rifle was legally obtained. See id. at 417:9-17, 418:3-10. However, as Agent Graham admitted, any cooling off period created by the 10-day waiting period did not work. See id. at 419:20-23. In Allman’s case, Allman did not use the most dangerous firearm (the assault weapon). The firearms that Allman did have were either lawfully obtained and subjected to the 10-day waiting period, or they were obtained unlawfully and not subject to any background checks or waiting periods. Aside from Allman, Agent Graham had no other examples. See id. at 414:7-15.

Essentially, this doesn’t happen, and no evidence was presented that it does.

For the purpose of the cooling off period, the bad outcomes trying to be prevented can occur from all firearms. For other purposes, like restrictions on types of firearms or firearm capabilities, the characteristics of each could differentiate the utility of each.

Currently Silvester was won (for my side) at the district level, lost when appealed to the 9th circuit, and denied en banc review. I believe they will file for cert, but who knows. Typically the deadline is 90 days, which would be in a couple weeks from now.

[silenus]

@mhendo

I’ve said on this message board a few times before that gun ownership is one area of politics where my opinion shifted somewhat in the years after i moved to the US. I arrived from Australia as something of a gun abolitionist, believing that very few people should have guns, and then only under strict and limited circumstances.

After talking with some American gun owners online (including here at the SDMB) and in person—my next-door neighbor in Baltimore owned about 14 guns, from handguns to hunting rifles—i moderated my position somewhat, and i do have some sympathy for responsible gun owners who feel unfairly lumped in with criminals. I believe that there are plenty of gun owners in the country who really do promote responsible use, and who don’t constitute a threat to my safety just because they choose to own firearms. I also think that it would be possible, with the right will, to create a legal and policy framework that recognized this, while also taking concrete steps to reduce the number of guns in the country, and reduce gun violence.

But as long as the gun-rights agenda in the United States is so firmly in the hands of the National Rifle Association—the sort of people who produce videos like this—i will continue to cheer every setback for gun owners. Until the responsible gun owners much more openly and loudly disavow the lunatics, maybe with a new organization of their own, and with greater efforts to advocate some reasonable policies in Washington and in the states, i’m not very interested in lending my support to them.

During the same period I have gone the exact other direction. I used to be a member of the NRA and was a complete advocate for gun rights. Now I want the NRA declared a domestic terrorist organization and I would support not only severely restricted gun rights, but banning civilian sales/manufacture of 90% of the weapons made/sold.

Different strokes and all that. Before W I was a registered Republican, too.

[Scumpup]

I resigned my life membership in the NRA due to two things:

1. Ted Nugent. I hate that buffoon.
2. They like the status quo because it keeps the donations coming from the rubes.

[watchwolf49]

I think there’s a disconnect here … we don’t see “NRA donates money” --> “candidate gets elected” … we have the in between step of “candidate uses money to insure all the voters knows he/she fully supports the NRA” …

That’s a sure win in the State of Jefferson …

[mhendo]

@silenus

During the same period I have gone the exact other direction. I used to be a member of the NRA and was a complete advocate for gun rights. Now I want the NRA declared a domestic terrorist organization and I would support not only severely restricted gun rights, but banning civilian sales/manufacture of 90% of the weapons made/sold.

Different strokes and all that. Before W I was a registered Republican, too.

I remember crossing swords with you on quite a few issues early in my membership, and i’m pretty sure that gun rights was one of them. Was your change of heart the result of the NRA, of the growing number of mass shootings, or just part of a broader political shift?

I’ve fired quite a few guns in my life, although not for over 20 years now. I’ve shot small game (rabbits, foxes, kangaroos), and i’ve shot at stationary targets and clay pigeons. I’ve fired hunting rifles and military rifles and shotguns. Firing a gun is fun. I completely get that. I bet that if i bought a handgun and went to a firing range, i’d probably enjoy myself immensely. I understand that people who do this stuff don’t want it taken away, especially if they’re responsible gun owners. But for me, the cost of the current situation is just appalling.

Despite the shift i described in my previous post, my ideal situation would actually still be pretty severe restrictions on gun ownership. Ideally, no-one would have or need guns. But given how difficult it would be to put that toothpaste back in the tube in the United States (even WITH sufficient political support), i’m currently willing to settle for trying to wrest gun policy and the public discourse away from the complete fanatics in control of the NRA.

[silenus]

@mhendo

I remember crossing swords with you on quite a few issues early in my membership, and i’m pretty sure that gun rights was one of them. Was your change of heart the result of the NRA, of the growing number of mass shootings, or just part of a broader political shift?

All of the above, and more. The NRA had a lot to do with it, but mostly it was the overwhelming number of total assholes who have guns and insist on flaunting them. Time for a Federal law requiring all semi-automatic firearms to be bright pink, on pain of confiscation.

There are millions of people with guns who don’t bother me in the least. But I think the assholes ought to be stripped of their gun rights and then sent swordless to Palestine.

[Martini_Enfield]

@mhendo

Despite the shift i described in my previous post, my ideal situation would actually still be pretty severe restrictions on gun ownership. Ideally, no-one would have or need guns. But given how difficult it would be to put that toothpaste back in the tube in the United States (even WITH sufficient political support), i’m currently willing to settle for trying to wrest gun policy and the public discourse away from the complete fanatics in control of the NRA.

The sitation in Canada and New Zealand and Australia would suggest guns aren’t the problem, societal issues are.

There really is a huge amount of social inequality in the US that I haven’t seen in many other first world (or even second world) countries, along with untreated mental illnesses (due to the lack of universal healthcare) which doesn’t help things.

[Bone]

@Bone

En Banc petition denied for Silvester v. Becerra. I predict they will petition for cert and will be denied, unfortunately. Let’s see if I’m right.

Silvester v. BECERRA petitioned for cert. That’s the first half of my prediction, we’ll see if I get the second half right.

[septimus]

@Scumpup

@Miller

@Bone

I understand the idea for new purchasers, but why would a person who has 100 guns already need a cooling off period?

If you already own a hundred guns, it seems hard to argue that your second amendment rights have been infringed in any serious way.

Is it okay to inconvenience people who want to buy guns just for the sake of inconveniencing them? For what other legal products would you consider it okay?

Useless government regulations might make a very long and interesting thread. I might start with the three wasted days and long trip I needed to get a meaningless piece of paper so I could renew my driver’s license. (It’s on my mind since the license is coming up for renewal again. ) Being forced to wait 10 days to acquire one’s 101st gun couldn’t possibly make a serious list … except In the ♪ Land of ♬ the Armed ♩♩and The Home ♬ of the Brave-when-they-have-a-Gun ♬.

@Bone

I think a cooling off period would have an effect on suicides, however this specific case was about the 10 day waiting period for those that already possess firearms.

I know very little about firearms, but if I only had a small-caliber weapon would it not be prudent to obtain a better weapon for my suicide to avoid the risk of merely maiming myself?

[gatorslap]

@Martini_Enfield

There really is a huge amount of social inequality in the US that I haven’t seen in many other first world (or even second world) countries, along with untreated mental illnesses (due to the lack of universal healthcare) which doesn’t help things.

There really isn’t much overlap between the people who staunchly oppose gun control/regulations and the people who want to address socioeconomic inequality, implement universal healthcare, and/or increase public support for mental health issues.

This doesn’t make for an argument for or against any policy, but that’s the way our politics are.

[Bone]

@Bone

John Doe v. Attorney General Harris
1 handgun per 30 day period.

What it is: State law challenge to CA DOJ’s enforcement practice of denying a “1-in-30” handgun purchase limit exemptions to gun buyers that possess both a Certificate of Eligibility (COE) and ATF FFL03 (“Curio and Relic”) license. This is somewhat of a more esoteric argument - mostly a rules argument on how administrative process was followed. Currently a person is limited to one handgun purchase in a 30 day period. Most people don’t run into this, but collectors, or those purchasing at shows or gifts for others do.

Current Stage: Plaintiffs are conducting limited discovery. Following that, the case will move forward on motions.

Next step: Completion of discovery and filing of motion(s).

Bottom line: Can state agencies like the DOJ make up policies as they go, especially when those policies directly conflict with the express written text of the statutes? And, even if they somehow could, did DOJ’s rulemaking follow the Administrative Procedures Act?

Regarding case #3 - Decision by the state appeals court issued today.
Plaintiffs win on both lines of argument and lower court ruling reversed and remanded. Court concluded that CA did not comply with the APA in CA which requires certain practices be followed when rulemaking. In addition, the court disagreed with the conflicting interpretation of the attorney general with the plain language of the statute.

More attorney fees for future lawsuits, yay.