Current 2A Cases

NatoRepublic: Back on May 5th, a Joint Scheduling Report (#13) was submitted to the court. The court held a telephonic hearing (#14) on this matter on May 15th. The result of that meeting was the Scheduling Order (#15) that you have attached to your post.

What this means is that an extended period of Discovery has been initiated by both parties and the court agrees to that timetable. A date for a non-jury trial (trial by the judge) has been set for March 25, 2014 (essentially, 2 years from now).

I suspect that the reasoning for this somewhat lengthy case has to do with what is happening elsewhere, that could potentially enhance Jason Davis' case (if things go the way we would like).

This case is a departure from the way we have been seeing our 2A cases being handled: Lose fast to get to circuit. That has to do with the nature of the 9th circuit which seems to give "public safety" reasons a great deal of deference. Knowing this, there must be time for the other circuits to weigh in on just how much a States "public safety" mantra can be allowed to interfere with a fundamental right.
 
Federal judge strikes down part of Chicago's gun law

http://www.chicagotribune.com/news/...-of-chicagos-gun-law-20120619,0,7474675.story

I see this as significant because it prevents previous violations of draconian or unconstitutional gun laws being used as a basis to deny firearms "permits".

In Chicago, a firearms permit means being permitted to purchase and posess a firearm.

It's also very interesting that Judge Der-Yeghiayan's words are in the record now (emphasis mine):

“The same constitution that protects people’s right to bear arms prohibits this type of indiscriminate and arbitrary governmental regulation," he continued. "It is the opinion of this court that any attempt to dilute or restrict a core constitutional right with justifications that do not have a basis in history and tradition is inherently suspect.”
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Thanks for that, LC, and welcome to the Firing Line! I actually saw this over at MDShooters and was busy reading the opinion, before I logged in here.

This one was definitely "under the radar!" There's a lot more to this decision than first blush might indicate.

I'll be adding this to the list (it's not done, Chicago will appeal), and starting a new thread on this (if someone else doesn't before I get it written up).
 
From the quotes in the news report, the rationale could be expanded to include the federal prohibition against possession of firearms by one subject to a domestic violence restraining order or a misdemeanor conviction for (domestic) battery.
 
An update to three cases at the 9th Circuit.

I'm posting here, so I don't have to duplicate the posts in the individual threads and because the third case has no thread (as yet).

In Richards v. Prieto:

06/04/2012 45 Filed (ECF) Appellants Calguns Foundation, Inc., Adam Richards, Second Amendment Foundation and Brett Stewart Motion to hear this case before the panel which will hear case 10-56971. Date of service: 06/04/2012. [8200863] (DK)

06/19/2012 46 Filed clerk order (Deputy Clerk: GS): The appellants’ motion to lift the stay of appellate proceedings in No. 11- 16255 is granted. The stay of appellate proceedings is lifted in No. 11-16255. [8220426] [10-56971, 11-16255] (SM)
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Case #10-56971 is the Peruta case... Which is the next entry.

05/18/2012 84 Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta Motion to lift stay. Date of service: 05/18/2012. [8184252] (CDM)

05/22/2012 85 Filed (ECF) Appellee William D. Gore response opposing motion (,motion to lift stay). Date of service: 05/22/2012. [8186780] (JC)

05/25/2012 86 COURT DELETED INCORRECT/DUPLICATE ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [87]. Original Text: Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta Motion to lift stay. Date of service: 05/25/2012. [8191708] (CDM)

05/25/2012 87 COURT-ENTERED FILING (to replace [86] with correct filing type). Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta reply to response (motion to lift stay). Date of service: 05/25/2012. [8192084] (ASW)

06/01/2012 88 Filed (ECF) Appellants Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson and Edward Peruta citation of supplemental authorities. Date of service: 06/01/2012. [8199885] (CDM)

06/19/2012 89 Filed clerk order (Deputy Clerk: GS): The appellants motion to lift the stay of appellate proceedings in No. 11- 16255 is granted. The stay of appellate proceedings is lifted in No. 11-16255. [8220426] [10-56971, 11-16255] (SM)
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I think that last entry means that the stay is also lifted in Peruta, but I could be wrong. Otherwise, why would the clerk make the entry about the other case (Richards)?

Current status of Birdt v. Beck at the 9th:

05/26/2012 10 Submitted (ECF) Opening brief for review. Submitted by Appellant Jonathan Birdt. Date of service: 05/26/2012. [8192964]--[COURT UPDATE: Removed Excerpts of Record (notified party filed in paper format only). Resent NDA. 05/30/2012 by RY] (JB)

05/31/2012 11 Filed clerk order: The opening brief [10] submitted by Jonathan Birdt is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. [8196616] (WP)

06/01/2012 12 Filed Appellant Jonathan Birdt excerpts of record in 3 volumes. Served on 05/26/2012. [8200196] (WP)

06/07/2012 13 Received 7 paper copies of Opening brief [10] filed by Jonathan Birdt. [8206335] (SD)
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At issue?

Did the District Court err in finding, under an intermediate scrutiny standard, that Defendants were justified in denying Appellants’ Fundamental Rights under the Second Amendment to possess a firearm for self-defense, outside of the home, by denying his application for a permit to carry a concealed weapon (hereinafter CCW Permit) by determining that there was a nexus between criminals who commit crimes and law abiding citizens seeking statutory permits to exercise their Fundamental Rights who might then commit a homicide because they were granted a permit?
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Jon Birdt waives oral argument.

The brief is short and to the point; terse would be a word to describe this brief. Nonetheless, it is of higher caliber than we've seen from this plaintiff to date.
 

Attachments

Wow. That might be Birdt's best work. Good move waiving oral arguments, as he is no great orator. Question, though: Shouldn't the conclusion include a clear demand/prayer for relief?
 
Good move waiving oral arguments, as he is no great orator.
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I was wondering why he waived oral argument. It is a bit unusual to do so unless it is a weak appeal. An appellant normally has the uphill battle and usually wants every opportunity to persuade the appellate court that the lower court was wrong. There are exceptions, of course.
 
A not much talked about case, Scocca v. Smith, a Don Kilmer CCW case based not upon the 2A but upon the Equal Protection clause of the 14th amendment was just dismissed. This case was specific in that it did not implicate the 2A at all.

The Docket is here: http://www.archive.org/download/gov.uscourts.cand.238467/gov.uscourts.cand.238467.docket.html

The Order granting the County's MTD is here: http://www.archive.org/download/gov.uscourts.cand.238467/gov.uscourts.cand.238467.40.0.pdf

Interesting procedure used by Judge Chen (who took over the case from Judge Fogel on May 19, 2011). The case was stayed, pending Nordyke on Feb. 14, 2012. The Stay was lifted on June 12th, with a Case Management Conference set for July 13th. Then, last Friday, the Judge issued his Order Granting Defendants #9 MTD.

The lawsuit had 3 claims. 1) A violation of the 14th amend. EP clause; 2) A violation of the CA EP clause; and 3) A violation of CA Civil Code § 52.3.

We will have to wait and see what the plaintiffs will do.

The Judge dismissed counts 2 and 3 with prejudice but count 1 was dismissed with leave to file an amended complaint within 30 days.
 
As Al mentioned, this case was an Equal Protection case based on how concealed carry permits are issued (or not). Nevertheless, there was some discussion about the 2A as the "right" involved in an Equal Protection claim impacts the analysis of the claim. The district court made one rather startling statement (to me at least). It recognized that the panel's opinion in Nordyke had been vacated by the 9th Circuit en banc but stated:
"Although the Nordyke panel decision is no longer binding
authority (in light of the en banc decision), the reasoning of the panel decision is still persuasive – i.e., that “heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms for self-defense.” Nordyke, 644 F.3d at 783.
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Opinion at p. 9.

WHAT? You're citing an opinion that the rest of the circuit court bench has said is not good?

Nevertheless, the plaintiff has standing problems because there were only conclusory allegations made that others similarly situated were treated differently; i.e., no specific facts were alleged.

In addition, the court said:
Here, Mr. Scocca has failed to adequately state a claim of substantial burden of Second Amendment rights sufficient to trigger strict security under the equal protection clause. Nowhere in his complaint has he included any factual allegations explaining how his right to keep and bear arms was substantially burdened as a result of Defendants’ actions. Indeed, as Defendants argue, at best Mr. Scocca has simply alleged in his complaint that he would prefer to carry a concealed weapon in order to conduct his work more effectively.
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Opinion at p. 11.

The dismissal on the federal claim was without prejudice and the court has allowed 30 days to amend the complaint. The plaintiff also sought relief for a state claim and it was dismissed with prejudice. Normally, a party cannot appeal a dismissal of part of a case until a judgment on the whole case is entered. Since leave to amend the federal claim was granted, I don't believe the case is yet appealable.
 
Mostly correct Jim.

The SAF and CGF can appeal their dismissal on standing. There is enough precedent on the other CA cases where they have standing, to do so.

Since the Judge found Scocca to have standing, the other plaintiffs also have standing. This has been cited in case after case, across the nation.

The Judge definitely erred in quoting from the vacated Nordyke decision.

I think we will simply have to wait and see what Don Kilmer decides to do.
 
Federal Rules of Civil Procedure 59 and 60

I have no idea what the state court rules are in the Bluegrass State but in Federal Court any dismissal of a complaint, in whole or in part (with or without prejudice) can be appealed if one follows the proper procedure.

Don Kilmer says he will be filing an Amended Complaint.
 
have no idea what the state court rules are in the Bluegrass State but in Federal Court any dismissal of a complaint, in whole or in part (with or without prejudice) can be appealed if one follows the proper procedure.

Don Kilmer says he will be filing an Amended Complaint.
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Not exactly the same as the federal rule. I do point out Federal Rule of Civil Procedure 54(b) which states:
(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
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http://www.law.cornell.edu/rules/frcp/rule_54. So, it really depends upon how the actual "judgment" is worded. I don't belief the Opinion and Order linked to would be the actual judgment which could be appealed. One could be entered separately.

BTW, the entry or denial of temporary injunctions are handled differently, of course, but I don't think that relief was sought. I could be wrong as I am not intimately familiar with the litigation.
 
Scocca et al v. Smith et al

If Kilmer had wanted to stand by his complaint, FRCP Rules 59 and 60 give him that option. The dismissal with prejudice of his equal protection claim under the California Constitution could have been appealed immediately but he never should have brought that claim in a concealed carry lawsuit.

Here is why.

California used to have a law banning the carrying (or even possession) of handguns by persons not born in the United States which was upheld by the California Supreme Court in 1924. That portion of the law was overturned by the California court on equal protection grounds a half century later. Which, at first glance, might have seemed like a good idea to make the equal protection claim under the California Constitution until one tracks back the two cases cited by the District Court judge in the denial: People v. Yarbrough and Kasler v. Lockyer.

Both track back to the California Supreme Court decision from 1924 (In Re Ramirez) which held; that the Second Amendment was not an individual right, it concerned only militias and applied only to the Federal Government.

The Court in Ramirez relied instead on Nunn v. State (which was cited in Heller) to decide whether or not Ramirez had the right to carry a handgun concealed (he did not) but even though there is a right to openly carry a handgun, Ramirez, as someone who was not born in the US, did not have a right to even possess a handgun let alone carry one.

The Court did remark that had the law prevented Ramirez from carrying a loaded rifle or shotgun then it might be unconstitutional.

So even if the Federal judge hadn't dismissed Kilmer's claim under the California Constitution it would only have hurt his concealed carry case in the long run.

My claims under the California Constitution in my lawsuit were dismissed for entirely different reasons. In a complaint seeking purely declarative and/or prospective injuncitve relief (no monetary damages, even indirectly) the court held that the Eleventh Amendment barred my claim.

Apparently the Judge assigned to me case does not understand Ex Parte Young (1908). :rolleyes:
 
This is a very bad decision. It is hard to imagine that a judge could ascend to the level of a circuit court of appeals with so little ability to reason. I certainly hope this is appealed.
 
An oral hearing has been scheduled in the long overdue Palmer case. See post #2, item #11 in this thread.

07/23/2012 MOTION SCHEDULING NOTICE as to 6[RECAP] MOTION for Summary Judgment ; 5[RECAP] MOTION for Summary Judgment, 34[RECAP] MOTION to Strike 33[RECAP] Supplemental Memorandum,. Motion Hearing set for 8/27/2012 10:00 AM in a courtroom to be determined at a later date before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 07/23/2012)

07/25/2012 RESCHEDULING NOTICE TIME CHANGE ONLY re: 6[RECAP] MOTION for Summary Judgment, 5[RECAP] MOTION for Summary Judgment, 34[RECAP] MOTION to Strike 33[RECAP] Supplemental Memorandum. Motion Hearing remains set for 8/27/2012 and the time is changed to 03:30 PM before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 07/25/2012)
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Busy time For Alan Gura this coming October.

Schrader will be argued on October 10th, at the D.C. Circuit.
Lane will be argued on October 23rd, 4th Circuit.
Woollard will be argued on October 24th, also 4th Circuit.

Many of us had thought that the 7th Circuit would be releasing the decision on the Moore/Sheppard cases by close of the session, August 8th. It didn't happen.

But not to be discouraged, the 7th Circuit is still releasing decisions!

There were 5 decisions released on the 8th; 5 on the 9th; 5 on the 10th; 1 on the 13th; 5 on the 14th; 1 on the 15th and 2 today, the 16th. These decisions are both criminal and civil decisions, so there is still plenty of hope that our case(s) may be decided fairly soon.
 
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