Nordyke - Cert filed at SCOTUS

Mediation is a good thing. Fact is, mediation is the "in" thing for courts, nowadays. It relieves all sorts of problems with Judges having to decide the cases.

I admit however, that I'm hard pressed to find one instance of a circuit court ordering mediation when the parties have not requested it. What is more troubling, is this sua sponte order being given after oral arguments.

This is not something that is unusual. This is without any precedent at all. It strikes a new low for any court, let alone an en banc circuit panel.
"We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly." Kozinski, dissenting.
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That this was some sort of compromise that the panel was willing to make in order to not to have to reach a decision, is inescapable.

Given the general attitude of the 9th Circuit towards the second amendment, it gives rise to the idea that the decision was not one to sit well with these judges. Rather, as Lyle Denniston has noted, the court has shunted the decision to the side.
 
Given the general attitude of the 9th Circuit towards the second amendment, it gives rise to the idea that the decision was not one to sit well with these judges. Rather, as Lyle Denniston has noted, the court has shunted the decision to the side.
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I remain of the opinion that they "shunted" it to mediation so they would not be forced into issuing a decision they don't like, and which they do not wish to see established as precedent that can be cited.
 
Aguila, we pretty much agree.

What I would like to see (and what will not happen) is that both parties request a grant of cert to the SCOTUS to use its supervisory powers to tell the 9th to get off their butts and do their job.

There is recent precedent for this. The first case out of the gate in this session was a Per Curiam opinion. On 10/31/11, Cavazos v. Smith was decided. That case was the third time that the Court sent back to the 9th, a faulty decision and told them, point blank, they were wrong and to do their jobs. :rolleyes:

Regardless, this "forced" mediation will have no good outcome, if any.
 
Assuming that the 9th does not want to set precedent with Nordyke, there are still 2A cases on hold pending Nordyke's resolution. Those other cases will establish precedents, so what is the value of avoiding establishing a precedent now, only to decide the other cases to establish precedent?

Since other cases are on hold, would one of the pending cases be chosen to proceed while the other cases remained on hold pending any precedent from the first case? Is there an anticipated order in which the other cases would be decided? Could the 9th be trying to avoid a pro-2A decision in Nordyke to allow an anticipated anti-2A decision in another case?

Is there some aspect of Nordyke that is not present in the other cases? To my limited knowledge, the other cases would also recognize the 2A outside the home, so Nordyke is not special in that regard. Since Nordyke would put the 2A on government property, is the 9th trying to avoid a precedent that would puncture the presumptive legality of "longstanding prohibitions on ... firearms ... in sensitive places such as ... government buildings?"
 
I think you guys are right on. It really looks like an attempt to avoid handing down a pro RKBA judgment. Fascinating. I've seen courts play some interesting games, but this one takes the cake. Seeking mediation AFTER trial, AFTER appeal and AFTER oral arguments, WITHOUT a request from the parties? I think once you get that far mediation really isn't going to help.

I don't think it would meet the standard for an interlocutory appeal to the Supreme Court (I know little about appeals), but that would make for some interesting entertainment.
 
gc70, of the CA cases, there are two cases at the 9th that are on hold:

On 12-20-2011, (#9 - Filed May, 2009) Richards v. Prieto was stayed pending Nordyke. This case is fully briefed and awaits scheduling for Orals.

On the same day, (#13 - Filed Oct. 2009) Peruta v. County of San Diego was also stayed. This case is also fully briefed and awaits assignment of Orals.

Both cases have pretty much the same issues: Does the right to self defense include the right to carry outside the home. If so, then the discretionary "Good Cause" clause, violates the 2A. Getting that clause ruled as unconstitutional, would make CA a "Shall Issue" State, much like MD is now (barring the temp stay currently in effect).

There is no real order at this point, unless you believe the Circuit will pick Peruta{/i] for orals first, as it hit the Circuit before Richards. That's kind of a crap shoot. Riachards is, IMO, the cleaner case and is behind Peruta only because they settled with Sacramento County (a now dismissed defendant) and that held up the works.

gc70 said:
Is there some aspect of Nordyke that is not present in the other cases? To my limited knowledge, the other cases would also recognize the 2A outside the home, so Nordyke is not special in that regard. Since Nordyke would put the 2A on government property, is the 9th trying to avoid a precedent that would puncture the presumptive legality of "longstanding prohibitions on ... firearms ... in sensitive places such as ... government buildings?"
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First, the last panel said that unless there were "substantial effects" upon the 2A right, enhanced scrutiny did not apply. That could be used to uphold the discretionary nature of CA permits. Further, since the prior ruling also held that Alameda's ordinance did not "substantially effect" the ability of people to acquire firearms, there was no need to look into the "sensitive places" or "longstanding prohibitions" issues.

Despite the fact that the ordinance was enacted back in 1998, it was challenged almost immediately by the Nordykes. Therefore, the only "long standing" thing about this case is that gun shows were held at the fairgrounds for umpteen years (with no problems, mind you), before the ordinance. That also goes to negate the "sensitive places" issue.

What we are actually left with is commercial activity interference/discrimination by the County, that just happens to be a protected activity, via the 2A: A Government Ban on the right to acquire the implements of the right itself.

In light of the rulings in Ezell, Woollard, Weaver, Bateman and now Fletcher, in order to uphold what the panel said, would make this a cert worthy case (in essence, this would be a circuit split). They would stand a good chance of being reversed and I believe they know this. They would also be taking a chance of setting nationwide precedent with an opinion against them.

While it is still up in the air about any appeals with Bateman, I don't believe NC will appeal. Weaver will not. That case is pretty much settled law. MA might still pursue Fletcher, but I think they would be foolish (Judge Woodlock was pretty thorough here). We know MD is appealing Woollard, but I strongly doubt that they will get anywhere. Judge Legg's opinion was solid.
 
I think it's ridiculous that mediation was ordered. We're talking about civil rights here - not a divorce or a contract dispute.

But I had court ordered mediation in a dispute with my ex-wife. And in discussion in chambers with only our two lawyers, the judge proposed a solution. My lawyer said "That's sounds fair, I know my client will go for that. My wife's lawyer said "I don't think my client will go for that."

Five days later we went back to court, I was completely OK with the judge's compromise solution, my ex was sticking to her demands 100%

The result was, the judge got angry with her and ruled against her flat out.

So anyway - my point is that

1) This situation seems to me to be uncharted territory with regard to gun rights litigation so who know what can happen?

2) If either party becomes intransigent and unreasonable - who knows what the consequences will be? They may anger the judges and affect a ruling against themselves.
 
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I don't have a lot of experience in mediation because of the nature of what I do. I can very well believe a court would not look kindly on someone refusing to mediate. The fact this is an appellate court involving substantial questions of constitutional law would problem lessen any "hostility" but I think it would be a bad idea not to at least go through the motions.
 
Nordyke Finally Over - Decision's out

Decision
I think even the county will be so glad to have this behind them that piling on of new, unusual restrictions is unlikely, until they get their bill!

Each justice characterized the 11th hour consessions as broad, sweeping, etc.

The County now avers that a gun show is an event within the meaning of the exception . . . . We hold the county to it's interpretation of the ordinance, . . .
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Twelve years into this appeal, the County now represents that its ordinance presents no barrier to conducting gun shows. Contrary to its previous assertions, the County now concedes . . .etc, etc,
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The County's sweeping concession - made at oral argument before the en banc court - change the game and make this a far different case from the one argued before the three judge panel.
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In light of the breadth of the County's concessions at oral argument, I am satisfied that the ordinance, as applied to Plaintiff's gun shows and as now interpreted by the County, survives this [undue burden] standard
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Looks to me like Don's going to get paid. May it cause an undue burden on the county coffers.
 
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Awesome! Now what I think is needed is those cases waiting on this decision need to be moved forward. Time for the chock blocks to be pulled and let them roll further down the runway.
 
It will be interesting to see if the county attempts to enforce the ammo ban. Ammo sales are the bread and butter of gun show sales, and part and parcel of the right itself.

If there is an ammo ban, I believe it puts a 2A claim back on the table. If I were the county, I would just acquiesce and be done with it. But this is Alameda, so who knows.

The exemption for events does not include ammo, only secured firearms.
 
That's an interesting judgment. Thanks in no small part to the County's almost complete reversal of position, the judgment essentially boils down to "There's no more argument here so let's all go home."

I wonder if the decision is going to provide any guidance whatsoever for other cases being held in abeyance for this one, since it's unlikely the other cases can be counted upon to be resolved by the defendants reversing their positions.
 
Nordyke was essentially mooted by the defendant Alameda County at orals. In other words, they caved and gave up.

Because of this reversal of position by the County, there was no case or controversy. No case, no controversy, no decision, no precedent.

This case neither helps nor hinders any of the other cases at the 9th Circuit.

What remains to be seen is if Don Kilmer can recoup any fees for the last 12 years of litigation.
 
It's BAAAAAAACKKK!!!!!!

The Energize Bunny of gun cases is possibly not over yet! 'Krucam' at MDSHOOTERS posted the following recently filed briefs here, and here.

Don Kilmer, not surprisingly, feels there are unresolved issue of major import.
 
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