Peterson v LaCabe .. 10th Circuit LOSS !

[esqappellate]

We are having this discussion over on MD Shooters as well. Al, this what I said over there. I just do not get this petition:

What I did not see in the petition was a response to this statement in the court's opinion:

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.” (Slip op. at 18)

That is the heart of the court's opinion as to Denver. The plaintiff cannot both attack and not attack the Denver statute. If the court is correct (and that may be a big "if"), that Peterson did not attack the Denver statute in district corut, then I don't see how the petition can challenge Denver's refusal to allow OC. And if he isn't challenging that refusal to allow OC, that only leaves the attack on Colorado's refusal to give him a non-resident CCW, and the court says it is bound by the Robertson dicta on that. Now you can now say that the Robertson dicta was overruled by Heller and that is a fair argument, but you can not still attack the Denver ordinance that you did not attack in D.Ct. As I understand it, Colorado allows OC without a permit and concealed carry with a permit but allows the CC permit only to residents. Denver, by ordinance that the court says that Peterson did not challenge, bans OC completely and only allows CC with the Colorado permit. So, if, as Peterson says, OC is fine as one alternative, he *must* challenge the Denver ordinance banning open carry. Or he can challenge the State restriction of the CC permit to residents, but the petition does not raise that argument. So it is OC or bust. The court says bust cuz he didn't challenge the Denver ordinance. QED. So where am I wrong in this?

 

[press1280]

The P & I clause was brought up in district court but the ruling stated that claim was also abandoned. Don't know if it can be brought back or not at this stage. Very confusing indeed. Is there any benefit to giving up certain claims along the way?

 

[esqappellate]

The P&I was not abandoned in the CA -- the court specifically addressed it rejected the argument. And sure, every appellate attorney worth his salt narrows his case on appeal and on rehearing and on cert. If your best argument can't win, you sure can't win with the 2nd best argument. The trick is to know the difference. Which is why some lawyers get paid the big bucks.

 

[maestro pistolero]

So, if, as Peterson says, OC is fine as one alternative, he *must* challenge the Denver ordinance banning open carry. Or he can challenge the State restriction of the CC permit to residents, but the petition does not raise that argument. So it is OC or bust. The court says bust cuz he didn't challenge the Denver ordinance. QED. So where am I wrong in this?

Isn't that exactly the requested relief at the top of the original complaint?

This action, under 42 U.S.C. § 1983, seeks a declaratory judgment that the Colorado statute requiring an applicant for a permit to carry a concealed handgun (“CHL”) to be a resident of the State of Colorado violates the Privileges and Immunities Clause of the Constitution of the United States, the Second Amendment to the Constitution of the United States, and the Fourteenth Amendment to the Constitution of the United States, together with an appropriate injunction.

 

[esqappellate]

Yup, and he lost on the merits of the P&I argument. He does not see rehearing on that point.