Peterson v LaCabe .. 10th Circuit LOSS !

Both really. The decision not to challenge the Denver ordinance in district court meant that the court could sharply limit the case to concealed carry and the P&I argument. That may have been a miscalculation, but hindsight is always 20/20. The court doesn't and shouldn't address issues not preserved by the parties. The best path, now being followed by Gura and others, is to argue that the state can't ban both modes of carry and have the court strike down whatever method the state has adopted that imposes the ban on both. The remand is then for the state to fix it any way they want to with new legislation, ala Moore. Here, Gray could have challenged both the State law and the Denver ordinance. As it turns out, he would have lost on the state law, but might have succeeded in striking down Denver's ban on OC. Not a great result but better than the one they got. I am most distressed in this case not by the 2A ruling (which I see as is quite limited in its impact), but by the P&I ruling. I had hoped that might go the other way.
 
But during orals Peterson's attorney stated numerous times that they just wanted to be able to carry in some form in Denver. Did they write something in the briefs that blew the whole thing up?

Also the P & I ruling stinks IMO but I guess that was also limited to CCW?
 
the court of appeals stated:

Peterson has repeatedly expressed, however, that he is not challenging the Denver ordinance. After Suthers advocated for the constitutionality of the Denver ordinance in his motion for summary judgment, Peterson clarified that he was not arguing that the ordinance is unconstitutional, but that it is Colorado’s “refusal to allow Plaintiff to obtain a CHL that is unconstitutional.” Claiming that Suthers was attempting a “back door attack of Denver’s ban on open carry of firearms,” Peterson stated that “this case is not the proper vehicle for his attack.”
In light of Peterson’s explicit statement that “this case is not the proper vehicle” for an attack on the validity of the Denver ordinance, Peterson has clearly waived any such challenge. See United States v. Zubia-Torres, 550 F.3d 1202, 1206 (10th Cir. 2008) (an issue is waived, rather than forfeited, when a party “deliberately considered the unraised issue and made an intentional decision to forego it”). Because the district court accepted Peterson’s formulation of the case in ruling on the parties’ cross-motions for summary judgment, Peterson cannot be heard to complain of any alleged error he himself invited. See United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005) (“[T]he invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt.”). We see no reason that a plaintiff could not challenge both the statute and the ordinance in the same suit, but Peterson has made a conscious decision not to challenge the constitutionality of the Denver ordinance.

As a general proposition, all of this is sound law. Regardless of what you allege in the complaint, if you disclaim a claim in the pleadings or on summary judgment, the courts can and should hold you to it on grounds of waiver. If the district court rules on that basis, you will not be permitted to challenge on appeal that ruling on a ground that you waived.

Yes, the P&I ruling was on a challenge to the residency requirement of Colo. law.
 
maestro pistolero said:
Frank,
I have no idea who this individual is, either. But what's the point of having a means to post anonymously under a screen name if the ideas presented are not assessed on their merits, but rather than on the pedigree of the writer...
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I'm aware of that point of view and don't fully share it. The fact is that not all opinions are equal. The opinion of my doctor about my health deserves much more attention than that of my mechanic, and if that weren't the case I'd need a new doctor.

It's a matter of credibility. There's a difference between the opinion of someone who has appropriate education and experience in the subject matter to which the opinion relates and that of someone lacking appropriate qualifications. In court, only someone whose qualifications have been established may testify as to an opinion, and there's a reason for that.

I know something of the qualifications and track record of Alan Gura. I know something of the qualifications and track record of Alan Gottlieb and the Second Amendment Foundation.

Furthermore, smoking357's opinion is not supported by citation or reference to objective evidence, but rather by conjecture and assumption. That might be one thing when the person stating the opinion has established his credibility and qualification. It's another thing when the person is an anonymous denizen of cyberspace without established reputation. In effect, the merits of smoking357's opinion can't be assessed -- only whether it "sounds good."
 
Another thing to consider.

When I make a statement, of supposed fact, and I don't back it up with citations, everyone can easily conclude that this is just my opinion. But I'm not anonymous. I post using my name. Therefore, my posting history comes into the equation. And that is the basis for any reputation I might have in my opinion.

An anonymous person with no history, has no credibility at all, most especially when making assertions without any citations provided. The least someone can do, is to back-up their opinions or assertions with citations to the facts.

This is why we make such a big deal of members who come here with their opinions and no facts to back up that opinion. It's a double edged sword that cuts both ways.

Smoking357? Remember this when posting here. The Firing Line demands a higher threshold than most other forums on the net. This is by intention. We are a hard audience.
 
I am not so sure that the original argument is not part of a deliberate strategy. There is now a decision implying concealed carry is a right. Why would one want to muddy the water in this case by dragging in open carry?
 
As a non-lawyer, I come to this particular forum to gain knowledge and ask the occasional question. I sometimes state an opinion, but I always preface the opinion by saying the "I am not a lawyer..." . Given the nature of this forum, with so many legal professionals participating, I feel that preface is important.

For me, the value of this forum is enhanced because certain people have an established reputation and credibility, and they post often. Thank you Al, Frank, and Spats!
 
This is what I posted to reddit on the subject:

Well it's worse than that. A lot worse.

First issue is that Gray has both WA state and UT state permits. He lives in WA state. UT allows out-of-state permits, but since WA state doesn't honor CO permits, CO screws Gray purely based on his WA state residency despite his having a UT permit that CO does otherwise honor.

The reason WA state doesn't honor CO permits is because WA state issues to out-of-WA-state residents, at very reasonable prices. CO doesn't issue any permits to non-CO residents, at any price. Gray is being personally punished for his state's take on the issue (even though he has a UT permit!).

Follow? He is being discriminated against for his state of origin - and that is already hard-banned by the US Supreme Court in two previous cases: Ward v. Maryland (1870) and Saenz v. Roe (1999). Both of those cases ban cross-border discrimination by one state against another state's residents, and damned well should have applied here. (These cases are why you never see a speed limit sign that says "in-state license plates 65mph, out-of-state plates 55mph".)

But the even bigger problem is that Gray did something smart: he not only sued the state of CO, he also sued the county where Denver is. See, Denver has a local, special rule that says "no open carry". Anywhere else in CO, it can be argued that Gray's right to bear arms isn't 100% toast because he still has a right to open carry. And in, say, Boulder, that's true. But not in Denver, the biggest town. There, he has zero carry rights because of the combination of no open carry and (for him as a WA state resident) no concealed either.

This 10th Circuit ruling completely ignores this problem, and claims this issue is about concealed carry only. That's a pure and simple lie.

Fortunately this decision will be overturned very soon. The US Supremes will have to confront the issue of street carry soon. There are several different things they can do but there is a strong hint in the Heller decision of 2008 that states will be allowed to decide between concealed carry or open carry (or both if they want) - they will not be allowed to completely write the phrase "bear arms" from the US Constitution as the 10th Circuit just managed to do (and flat-out lie about not doing so).

It's a bizarre and obviously wrong (downright fraudulent) decision but long term it's just a small road-bump.

Full disclosure: I know Gray Peterson well, his phone number is in my cellphone's address book, I have been to his house several times and we did research together on the OR concealed weapons laws and their origins.

I also know for a certainty he's not any kind of "right winger".
 
There is nothing wrong with the logic of plaintiffs arguments, but the court saw a direct challenge to the open carry ban as the more direct route. The plaintiff expressly declined to make that argument.

It does seem unavoidable that localities which ban open carry but allow licensed carry will eventually have to be held to that choice, and not be allowed to use it to deny the right completely, which IS the argument out forth in this case.

Because of the home rule exception, the court didn't think they could 'get there from here'. But relying on historical bans on concealed carry while ignoring all the sets of facts under which they were upheld is, well, sloppy, and more than a little disingenuous.

Whatever the legal reasoning, if the result is the denial of a fundamental right, then the court has failed utterly. I am not a lawyer, obviously, but I feel like my head is going to explode when a court settles for an unconstitutional outcome in the interest of maintaining status quo. It is worse than useless.
 
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maestro pistolero said:
It does seem unavoidable that localities which ban open carry but allow licensed carry will eventually have to be held to that choice, and not be allowed to use it to deny the right completely, which IS the argument out forth in this case.
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Your statement is incomplete. I think you mean localities which ban open carry but allow licensed concealed carry.

Either that, or (like Philadelphia), locations which ban unlicensed open carry but allow licensed open carry.
 
Al Norris

harrys ghost, the decision stated that there is no right to carry concealed.
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So far concealed carry has been seen as not protected. That is to say the states can regulate it heavily. I would think in any state that allows open carry concealed carry can be banned. Question still to be answered is in states without open carry how restrictive can concealed carry be.

My worry in the future, especially with possibles changes in the court, is that they will not disallow buying guns but allow for a lot of restrictions on type of gun and where it can be carried. I certainly hope some clear precedent can be set by the current court.

If no decision is reached then We will then be about where we are now free and not free states, with the loaming threat that a unfriendly congress can dump on everyone.
 
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And that is why we hope that the Court will grant cert in teh Kachalsky case. The specifically deals with a ban on open carry and concealed carry is the only option of carry, and that with a licensing scheme that does not allow all to be issued the license/permit (may-issue with "proper cause").

The Moore case, recently decided in Illinois, helps. Should the Woolard case (currently at the CA2) in MD be decided in our favor (State law struct down that had a "good cause" clause), this would be a direct split between circuits and would almost ensure that the SCOTUS take Kachalsky.
 
What about a trip to New York? They don't issue non-resident CC permits, don't allow open carry, and don't even issue non-resident ownership permits?
 
It occurs to me that there has to be a near-absolute right SOMEWHERE. It seems that according to this court, that would mean open carry is it. If true, that would certainly conflict with the philosophy and strategic approach by the CalGuns foundation.
 
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It seems to me the absolute right is carry in one form or the other- Meaning legislators get to pick one, or both, but not none. Most of us likely prefer Concealed of course.

Follow? He is being discriminated against for his state of origin - and that is already hard-banned by the US Supreme Court in two previous cases: Ward v. Maryland (1870) and Saenz v. Roe (1999). Both of those cases ban cross-border discrimination by one state against another state's residents, and damned well should have applied here. (These cases are why you never see a speed limit sign that says "in-state license plates 65mph, out-of-state plates 55mph".)
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And what about Corfield v. Coryell? From Justice Washington while riding circuit.
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.
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The problem with Ward and Saenz is that this court used the dressed up rational basis to claim they didn't apply. Add in that Bach v. Pataki is STILL being used to allow discrimination when it comes to firearms even though it rested on the 2A being only militia and not applying to the states.
 
So it has to go before SCOTUS to slap the hands of the circuit for refusing to keep up with them saying Rational Basis isn't enough? And what about the oldie I dug up? Thomas seems to like that one...
 
maestro pistolero said:
It occurs to me that there has to be a near-absolute right SOMEWHERE. It seems that according to this court, that would mean open carry is it.
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Possibly, but perhaps the court is saying that there is no Second Amendment right to concealed carry and no Second Amendment right to open carry. There's merely a Second Amendment right to carry, in some fashion, that the state cannot entirely foreclose. As Gray never put the other option in play, we truly don't know where the Tenth stands.

If true, that would certainly conflict with the philosophy and strategic approach by the CalGuns foundation.
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Indeed. The CalGuns bunch doesn't like open carry; they're embarrassed by open carry, and they know open carry in Venice Beach or Haight-Ashbury would scare the tar out of the locals. The CalGuns bunch also really likes permits, and they don't have much use for those of us who want constitutional carry, because they know they're so far from ever seeing that in California that seeking that does them no practical good. Knowing that loaded open carry wouldn't play well at home, or that they just wouldn't want to do it, even if legal, the CalGuns gang set this case up to give them a concealed carry win they could repatriate to California.

As I said earlier, that was a dangerous game of brinksmanship that placed the rights of gun owners across the country at stake and will be a permanent drag on full and unfettered exercise of the Second Amendment beyond the borders of California.

I read the aspirations of the posters in this thread with disappointment. They look at this case and blame the judge or hope plaintiffs will win on appeal or hope that the legal strategy will be burnished and prevail at an en banc appeal or the Supreme Court.

What they don't realize is that this case is not being fully and zealously prosecuted seeking every available argument. Gray and Gene set this case up to try to get a concealed carry permit win they could export to California. This case is only about concealed carry permits in California, not permit-less open carry in Denver. Gray never really convinced the court that his contact with Denver were all that substantial, and he entirely and conspicuously omitted the remedy of open carry in Denver from the case.

It's very likely the Tenth Circuit realized they weren't dealing with honest traders and didn't want to allow their court to be used for tainted motives. Posters here can think the court gave Peterson a raw deal, but I suspect that the court's antennae went up when dealing with him, and I further suspect that this case dies right here.

We gun owners need cases prosecuted with the purest, most passionate and most fully committed parties and lawyers. There are many such cases out there to which gun rights supporters would be better served directing their suggestion and assistance.

Jim Dandy said:
Most of us likely prefer Concealed of course.
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Really? I'd think most gun owners would, of course, prefer open carry.
 
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