Because the states still have a measure of sovereignty. Just like there may be splits of opinions between federal circuits, there can also be splits between a state and a federal circuit court of appeal, even if that state is located within that circuit. As I mentioned in my post #457 above, the federal courts still have teeth for violations of an injunction or by awarding monetary judgments under 11 U.S.C. section 1983.
You are using an out of date browser. It may not display this or other websites correctly.
You should upgrade or use an alternative browser.
You should upgrade or use an alternative browser.
Illinois Ban on Carry Ruled Unconstitutional (See Page 7)
- Thread starter Don H
- Start date
This is a county circuit court ruling, not the IL Supreme Court. Cook County can overrule the CA7?
Seems you now have some chaos in IL-I thought I read another county was going to throw out an UAW conviction based on Moore. It would seem there's a split now between Moore and this Cook County ruling, one saying a total carry ban is OK, one saying it isn't OK. Seems this throws fuel on the fire for SCOTUS to take Kachalsky(or some other case).
Seems you now have some chaos in IL-I thought I read another county was going to throw out an UAW conviction based on Moore. It would seem there's a split now between Moore and this Cook County ruling, one saying a total carry ban is OK, one saying it isn't OK. Seems this throws fuel on the fire for SCOTUS to take Kachalsky(or some other case).
Last edited by a moderator:
Ok, a little insight needed. Did the judge just rule AUUW unconstitutional on just those two accounts? Someone was saying something about a felon trying to overturn UUW, or AUUW? Here's why I ask...
on Tuesday I go to court on a prelim, I'm a deputy Sheriff in this wonderful state of Illinois, on a felon, caught with an uncased, loaded firearm in a vehicle within reach, and with a bag of cannabis in his pocket. More then enough to charge AUUW, not too mention UUW by Felon. Both of which are felonies, and this pillar of the community needs another stay at our fine DOC. Depending on who his appointed attorney is, one is a plea bargin machine, the other fights everything, this could turn south quickly. Does any of those rulings apply to a county as far away from Cook as you can get in Illinois, or do they apply to Cook County only? Or am I misreading/misunderstanding all of it?
Thanks ahead of time!!
on Tuesday I go to court on a prelim, I'm a deputy Sheriff in this wonderful state of Illinois, on a felon, caught with an uncased, loaded firearm in a vehicle within reach, and with a bag of cannabis in his pocket. More then enough to charge AUUW, not too mention UUW by Felon. Both of which are felonies, and this pillar of the community needs another stay at our fine DOC. Depending on who his appointed attorney is, one is a plea bargin machine, the other fights everything, this could turn south quickly. Does any of those rulings apply to a county as far away from Cook as you can get in Illinois, or do they apply to Cook County only? Or am I misreading/misunderstanding all of it?
Thanks ahead of time!!
It's not overruling the 7th Circuit because it is not a superior court to the 7th. It's sorta' like the county circuit court is in a different chain of command than the 7th Circuit. Both chains eventually merge and answer to the U.S. Supreme Court. This is not a perfect analogy because, as I mentioned before, the federal courts can enjoin enforcement of the laws and enforce it through contempt proceedings.This is a county circuit court ruling, not the IL Supreme Court. Cook County can overrule the CA7?
http://www.state.il.us/court/Media/On_Demand_2012.asp
The People v. Aguilar case(argued 9-11-2012) is waiting for an opinion at the IL supreme Court. I'm actually hoping for a loss here, then CA7 and the IL Supreme Court will have split. It's all about getting a case before the high court, and more conflict among lower courts the better chance.
The People v. Aguilar case(argued 9-11-2012) is waiting for an opinion at the IL supreme Court. I'm actually hoping for a loss here, then CA7 and the IL Supreme Court will have split. It's all about getting a case before the high court, and more conflict among lower courts the better chance.
I had forgotten about Aguilar! Thanks for the reminder, press1280.
Should the IL Supreme Court agree with the CA7, before the conference for Kachalsky, this would tend to push the SCOTUS towards granting cert.
I suspect that the IL Court may be watching to see what the SCOTUS might do.
This gets very convoluted, very quick. There is a general feeling, among court watchers and constitutionalists, that should the SCOTUS deny the grant of cert in Kachalsky, then we will not see any cases before the Supreme Court for a long time. This despite what Scalia has publicly said to the contrary.
Should the IL Supreme Court agree with the CA7, before the conference for Kachalsky, this would tend to push the SCOTUS towards granting cert.
I suspect that the IL Court may be watching to see what the SCOTUS might do.
This gets very convoluted, very quick. There is a general feeling, among court watchers and constitutionalists, that should the SCOTUS deny the grant of cert in Kachalsky, then we will not see any cases before the Supreme Court for a long time. This despite what Scalia has publicly said to the contrary.
The People v. Aguilar case(argued 9-11-2012) is waiting for an opinion at the IL supreme Court. I'm actually hoping for a loss here, then CA7 and the IL Supreme Court will have split. It's all about getting a case before the high court, and more conflict among lower courts the better chance.
I wonder if the Illinois Supreme Court will go the Anita Alvarez route and claim to be "above the law" and that federal courts have no power over Illinois law
As painful as it is to watch, I cannot help and laugh some of the just downright stupid things that my state tries to pass off.
Luger_carbine
New member
IANAL, but Illinois looks like it has a very messed up legal landscape.
You have one judge ruling that AUUW is unconstitutional - unrelated to Moore. You have another judge who goes out of his or her way to say that the Moore decision is not binding on Illinois courts, in a situation that Moore wouldn't necesarily have applied to (convicted felon with a firearm).
I'm wondering how this gets sorted out. If the state appeals People vs Mosely, could the case even be heard before the June 9th deadline?
It seems like it will be a mess at least until June 9th, but what happens then?
You have one judge ruling that AUUW is unconstitutional - unrelated to Moore. You have another judge who goes out of his or her way to say that the Moore decision is not binding on Illinois courts, in a situation that Moore wouldn't necesarily have applied to (convicted felon with a firearm).
I'm wondering how this gets sorted out. If the state appeals People vs Mosely, could the case even be heard before the June 9th deadline?
It seems like it will be a mess at least until June 9th, but what happens then?
62coltnavy
New member
The one judge who said that the Seventh Circuit decision is not binding on state courts is right, but for the wrong reasons. He is right only because the 7th has not yet issued an injunction barring enforcement of the carry ban. If and when it does so, you can bet your bippy that the decision will be binding on all state government, including the courts.
Which leaves an interesting question. We are down to a couple of months before the decision becomes final, and it won't if Illinois passes a carry bill. So what is the status? I haven't heard anything in weeks other than that hearings were being scheduled.
Which leaves an interesting question. We are down to a couple of months before the decision becomes final, and it won't if Illinois passes a carry bill. So what is the status? I haven't heard anything in weeks other than that hearings were being scheduled.
Let's not forget the Supreme Court of PUERTO RICO of all places ruling for a 2A right to carry and implementing shall-issue by court order.
I am starting to agree with that whole 51st state thing all of a sudden...
Jurisdictional Authority
This may well be the case where the Circuit in which the state court resides has not spoken, but not before the same Circuit that has clearly spoken on a federal constitutional grounds.
Any Circuit that would allow states to pick among Circuits in direct conflict with its own rulings on federal issues would soon be toothless indeed.
If there is not a case ruling on this issue, any Federal Court of Appeals could quickly make this objectively unreasonable by asserting its jurisdictional authority.
Until the Supreme Court rules on an issue in which there are conflicts among the circuits, a circuit court's ruling is binding precedent in that circuit.
There are many conflicts among the Circuits which the Supreme Court has yet to address. A system in which trial courts could disregard the relevant circuit court’s jurisdictional authority on federal issues would be objectively unreasonable.
No, the state courts don't have to follow a federal circuit court of appeals. However, that doesn't mean the federal courts are without teeth.
However, the state would defend by arguing that the state court's interpretation of the law's constitutionality was not contrary to clearly established Supreme Court precedent or a clearly unreasonable application of Supreme Court precedent. The state interpretation must be objectively unreasonable. It may be wrong but not objectively unreasonable.
This may well be the case where the Circuit in which the state court resides has not spoken, but not before the same Circuit that has clearly spoken on a federal constitutional grounds.
Any Circuit that would allow states to pick among Circuits in direct conflict with its own rulings on federal issues would soon be toothless indeed.
It may be wrong but not objectively unreasonable.
If there is not a case ruling on this issue, any Federal Court of Appeals could quickly make this objectively unreasonable by asserting its jurisdictional authority.
Until the Supreme Court rules on an issue in which there are conflicts among the circuits, a circuit court's ruling is binding precedent in that circuit.
There are many conflicts among the Circuits which the Supreme Court has yet to address. A system in which trial courts could disregard the relevant circuit court’s jurisdictional authority on federal issues would be objectively unreasonable.
MTGreen --
Let me try to make myself clear. If a federal court enjoins enforcement of a state law, than those who know of the injunction can be held in contempt of court. However, state courts are under no obligation to follow the opinions of the federal court of appeals for their circuit. These are often very influential, however.
Now, I put out a hypothetical worst case scenario where a person could be convicted in state court under a law the federal circuit court of appeals thinks is unconstitutional. The defendant could ask for a federal writ of habeas corpus but it may be appropriately denied. The U.S. Supreme Court has so held many times and routinely reverses the 9th Circuit and, to a lesser extent, the 3rd and 6th Circuits. What follows is a bit of boilerplate that I use to defend against typical habeas corpus petitions:
Let me try to make myself clear. If a federal court enjoins enforcement of a state law, than those who know of the injunction can be held in contempt of court. However, state courts are under no obligation to follow the opinions of the federal court of appeals for their circuit. These are often very influential, however.
Now, I put out a hypothetical worst case scenario where a person could be convicted in state court under a law the federal circuit court of appeals thinks is unconstitutional. The defendant could ask for a federal writ of habeas corpus but it may be appropriately denied. The U.S. Supreme Court has so held many times and routinely reverses the 9th Circuit and, to a lesser extent, the 3rd and 6th Circuits. What follows is a bit of boilerplate that I use to defend against typical habeas corpus petitions:
I apologize for the length and fear we may be drifting off topic.The Antiterrorism and Effective Death Penalty Act (hereinafter “AEDPA”) controls the scope of review of state court decisions filed after its effective date (April 24, 1996). Lindh v. Murphy, 521 U.S. 320 (1997) AEDPA prohibits federal courts from granting writs of habeas corpus on claims previously adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. §2254(d)(1) and (d)(2).
In reviewing a state court decision, a federal habeas court must first determine whether there was a controlling rule prescribed by the Supreme Court and then decide whether the state court legal determination was an objectively unreasonable application of that rule. Williams v. Taylor, 529 U.S. 362, 402-413 (2000) (Part II of Justice O’Connor’s opinion, joined by majority of the Court). If there is no controlling rule, the federal court must determine whether the state court’s decision resulted from an objectively unreasonable application of U.S. Supreme Court precedent. Id.
For a state to have acted contrary to clearly established precedent, the Supreme Court must have decided a case differently which has “materially indistinguishable facts” than the state case. Id. at 413. The federal habeas court must determine the governing legal standard by referring to holdings, not dicta, of the Supreme Court which clearly established the federal law governing state court trials at the time of the state court’s ruling. Williams, 529 U.S. at 403-413; Carey v. Musladin, 549 U.S. 70, 127 (2006) (holding the Ninth Circuit improperly cited its own precedent in determining state court had unreasonably applied clearly established Supreme Court precedent); see also Ramdass v. Angelone, 530 U.S. 156 (2000).
The Supreme Court has reiterated that "an unreasonable application of federal law is different from an incorrect application of federal law." Renico v. Lett, __ U.S. __, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010). A federal court cannot issue a writ simply because, by it’s own independent judgment, it thinks the state court applied the federal law incorrectly; instead, the state’s application of federal law must be “objectively unreasonable.” Id. The “objectively unreasonable” standard is higher even than the “clear error” standard. Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
The Supreme Court has emphasized the purpose of AEDPA, “The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). To that end, even where the state court summarily denies a claim, the burden remains on the petitioner to show the state court had no reasonable basis for denying relief. Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011).
The AEDPA standard was intended to be “difficult to meet.” Id. at 786. A writ should issue only “where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Id.
Off Topic? Hardly. These are just the sort of questions that the layman needs to know the answers of.
Should Kachalsky not be granted cert (in which case, neither would Woollard be granted cert), then there would be no need for Madigan to file for a petition of cert. The State could then go ahead and pass a carry law similar to NY/MD, with no ill effect from an immediate adverse ruling at the district or circuit levels.
Of course, if cert is granted, then IL's position becomes somewhat problematic.
Should Kachalsky not be granted cert (in which case, neither would Woollard be granted cert), then there would be no need for Madigan to file for a petition of cert. The State could then go ahead and pass a carry law similar to NY/MD, with no ill effect from an immediate adverse ruling at the district or circuit levels.
Of course, if cert is granted, then IL's position becomes somewhat problematic.
Luger_carbine
New member
Sorry to re-hash all these dates, but it's hard to remember them.
The IL AG's deadline to file for certiorari in Moore is midnight May 23rd (I think)
The CA7 stay ends on June 10th (I think)
What is the latest that we would find out if cert is granted in Kachalsky?
The IL AG's deadline to file for certiorari in Moore is midnight May 23rd (I think)
The CA7 stay ends on June 10th (I think)
What is the latest that we would find out if cert is granted in Kachalsky?
Lugar_Carbine said:What is the latest that we would find out if cert is granted in Kachalsky?
The earliest we could hear would be this coming Friday, although it would be normal to list it on Monday the 15th.
The latest? We don't really know. There are conference dates in April for the 12th, 19th and 28th. In May, there are 4 dates on Thursdays: 9th, 16th, 23rd and 30th. June conferences are: 6th, 13th and 20th. 2012 Term Calendar
While I think the decision for cert in Kachalsky will not be later than the end of April, the Court could conceivably wait until Woollard is filed and briefed. That would mean a wait until the start of the 2013 Fall Term.
It only requires 4 Justices to decide to take a case. I think it safe to say we can rely upon the 4 progressives to not want to grant cert. But we are not at all sure about what Roberts or Kennedy, may think.
Over at the ScotusBlog, there is a short listing on Kachalsky v. Cacace, they have listed the case as one to watch.
maestro pistolero
New member
Although the court has been informed by Gura that a Woollard cert petition is 'imminent', wouldn't that filing have to wait until the en banc hearing request is denied?While I think the decision for cert in Kachalsky will not be later than the end of April, the Court could conceivably wait until Woollard is filed and briefed. That would mean a wait until the start of the 2013 Fall Term.