Woollard v. Sheridan: Cert Denied - see pg 14
- Thread starter Al Norris
- Start date
Gary L. Griffiths
New member
In another thread, we are asked, what would be so bad about Obama being re-elected. Here's one answer!
thegunwire
Inactive
First thing I thought of was how this case could be used in California. Hopeful over here, but not holding my breath.
- thegunwire
The Court issued its decision (on multiple motion for MSJ), last Friday (Mar. 2) but did not publish it until Monday (Mar. 5). In that order, the court did not include any specific relief.
Such orders are, as a general rule, issued at the same time as the decision, but not always. We expected the Judge to file orders by the end of the week.
MD AG Gansler publically stated that MD would appeal.
Yesterday, Mar. 7th, the defendants (MD) filed a motion to clarify (FRCP Rule 59(e)) the injunctive relief and a motion to stay (FRCP Rule 62(c)) the relief.
The motion for clarification (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.54.0.pdf) is a legal tactic to force the Judge to declare the specific relief he intends to provide the Plaintiff, by way of further litigation.
The Plaintiff now has a right to respond to this motion.
The Defendants wanted the Plaintiff to respond by Monday, Mar. 12, but the Plaintiffs have consented to responding by Friday, Mar. 16, provided that the Defendants filed their motion by Wednesday, Mar. 7. The Defendants have so filed.
Immediately, the Defendants also filed a motion for expedited briefing (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.55.0.pdf) on the two motions filed above.
Normally, the Defendants would have 28 court days to file their appeal. This stops the clock for as long as these motions remain unanswered by the court.
It is interesting to note that in their Motion to Stay, the defendants articulate the very same "Public Safety" claims that the Judge has ruled unconstitutional in administering the licensing scheme chosen by the Legislature.
For those that have not followed closely, What the State is claiming is the same thing that all the States have claimed so far: "We cannot trust guns in the hands of the law-abiding public. It is a danger to the public safety that such citizens be allowed to roam the streets with guns."
Such orders are, as a general rule, issued at the same time as the decision, but not always. We expected the Judge to file orders by the end of the week.
MD AG Gansler publically stated that MD would appeal.
Yesterday, Mar. 7th, the defendants (MD) filed a motion to clarify (FRCP Rule 59(e)) the injunctive relief and a motion to stay (FRCP Rule 62(c)) the relief.
The motion for clarification (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.54.0.pdf) is a legal tactic to force the Judge to declare the specific relief he intends to provide the Plaintiff, by way of further litigation.
The Plaintiff now has a right to respond to this motion.
The Defendants wanted the Plaintiff to respond by Monday, Mar. 12, but the Plaintiffs have consented to responding by Friday, Mar. 16, provided that the Defendants filed their motion by Wednesday, Mar. 7. The Defendants have so filed.
Immediately, the Defendants also filed a motion for expedited briefing (http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.55.0.pdf) on the two motions filed above.
Normally, the Defendants would have 28 court days to file their appeal. This stops the clock for as long as these motions remain unanswered by the court.
It is interesting to note that in their Motion to Stay, the defendants articulate the very same "Public Safety" claims that the Judge has ruled unconstitutional in administering the licensing scheme chosen by the Legislature.
For those that have not followed closely, What the State is claiming is the same thing that all the States have claimed so far: "We cannot trust guns in the hands of the law-abiding public. It is a danger to the public safety that such citizens be allowed to roam the streets with guns."
The plaintiff in Woollard has filed their response to the States motion for Clarification and Motion to Stay: http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.59.0.pdf
Some Gura Goodies(TM):
Every time I think that Alan Gura has just outdone himself, he goes and does it again!
The State will probably file their reply sometime next week (they sought expedited briefing, so they have to file pretty darn quick). Judge Legg may or may not ask for orals. I suspect not. Final Ruling could come within 2 weeks.
Some Gura Goodies(TM):
- Page 3-4
- Page 5
- Page 6
- Page 8
- Page 9
- Page 12
- Page 14-15
Every time I think that Alan Gura has just outdone himself, he goes and does it again!
The State will probably file their reply sometime next week (they sought expedited briefing, so they have to file pretty darn quick). Judge Legg may or may not ask for orals. I suspect not. Final Ruling could come within 2 weeks.
No. The final ruling is for the district court level only.
The State can still appeal to the 4th Circuit.
However, as tight as the ruling by Judge Legg, their appeal will be on very shaky ground. The 4th Circuit would have to overturn Masciandaro and Chester to overturn Woollard. Almost every pundit agrees with this, pro and anti alike.
Add to this, that a panel cannot overturn the decision of another panel. Only the en banc 4th Circuit could do this. I don't see this as happening, nor do many others, more clued-in than I.
Now, as to what may happen. In his response to the States question of clarification, Gura has made a very strong case for the Judge to impose an actual injunction. What we will see, in the next few days, is the States reply and how they will try and worm their way into dismissing the injunction. Ought to be entertaining!
Since the State has yet to file their notice of appeal (and they won't, until this matter of clarification is settled), a Stay cannot be given (even though they asked for one). So, until they file their notice of intent, I don't expect the Judge to give it much thought, other than to cite the applicable FRCP.
There's another thing at play here. The Memorandum of Opinion is a Declaratory Judgment. It declares that a single section of the code (5(ii)) to be unconstitutional. Alan Gura, in his response, has indicated that despite the State saying that they generally will obey the Judgment, they are currently operating as if the Judgment were not in force.
That is a very strong indicator that the Judge will issue a permanent injunction. Depends upon how far the Judge leans towards our "cause" and his own reaction to the State thumbing their noses at him.
Here's the thing. With a Declaratory Judgment, the State cannot be held in contempt. With an actual injunction, they can.
Uncle Buck
New member
I love reading Alan Guras' "Briefs".
He basically calls them "Stupid" and it makes me wonder if they, the defendants, have even read the court findings.
He basically calls them "Stupid" and it makes me wonder if they, the defendants, have even read the court findings.
On March 20th, the Judge ordered a teleconference in which the following would be discussed:
That teleconference came on March 22nd. We now have a bit more info in what the Judge is thinking about.
This morning, two docket entries have shown up. The first, Docket Entry #62 is a notice of a jointly proposed order. The second, Docket Entry #62.1, is the draft proposal and a briefing schedule.
The proposed order is for an Injunction to be issued and a briefing on the Stay while at appeal.
It appears that the Judge, in the teleconference, indicated a willingness to impose the injunction. All that is left is to consider the Stay.
The briefing schedule on the Stay is as follows:
This is only a proposal, but it may as well be set in stone, since both parties agree.
What this means is that an Injunction will be issued. Mr. Woollard will get his permit. A temporary Stay will be in effect while this matter is completely briefed. Within a couple of weeks after May 23rd, the Judge will issue his final opinion on the matter of the Stay. The clock then starts ticking on the appeals process.
The MD legislature will be out of session by this time, so there will be no chance of a legislative remedy any sooner than 2013. The 4th Circuit could have a ruling on this by that time.
Theoretically, the Governor could call an emergency session, but this is an election year and he would be foolish to call them back and take away from their chances of being reelected - actually, it would be political suicide to call an emergency session in an election year.
I should also note that this is all procedurally correct. Judge Legg doesn't want anything to come between his decision and an appeal (on other grounds).
I still suspect that he will deny the Stay, and toss the whole thing up to the 4th Circuit.
- Whether the “good and substantial reason” language is severable.
- Whether the State will now issue a permit to Mr. Woollard.
- Assume the excision of the “good and substantial reason” requirement. How would Maryland's permitting system compare with the system in force in other states?
- In terms of handgun violence, how does Maryland compare with states with less restrictive permitting systems?
That teleconference came on March 22nd. We now have a bit more info in what the Judge is thinking about.
This morning, two docket entries have shown up. The first, Docket Entry #62 is a notice of a jointly proposed order. The second, Docket Entry #62.1, is the draft proposal and a briefing schedule.
The proposed order is for an Injunction to be issued and a briefing on the Stay while at appeal.
It appears that the Judge, in the teleconference, indicated a willingness to impose the injunction. All that is left is to consider the Stay.
The briefing schedule on the Stay is as follows:
- The defendants shall submit an opening brief on or before April 19, 2012;
- The plaintiffs shall submit a response brief on or before May 9, 2012; and
- The defendants shall submit a reply brief on or before May 23, 2012.
This is only a proposal, but it may as well be set in stone, since both parties agree.
What this means is that an Injunction will be issued. Mr. Woollard will get his permit. A temporary Stay will be in effect while this matter is completely briefed. Within a couple of weeks after May 23rd, the Judge will issue his final opinion on the matter of the Stay. The clock then starts ticking on the appeals process.
The MD legislature will be out of session by this time, so there will be no chance of a legislative remedy any sooner than 2013. The 4th Circuit could have a ruling on this by that time.
Theoretically, the Governor could call an emergency session, but this is an election year and he would be foolish to call them back and take away from their chances of being reelected - actually, it would be political suicide to call an emergency session in an election year.
I should also note that this is all procedurally correct. Judge Legg doesn't want anything to come between his decision and an appeal (on other grounds).
I still suspect that he will deny the Stay, and toss the whole thing up to the 4th Circuit.
Can ask a dumb question?
OK, the judge issues his injunction and it is appealed. The appeal is denied, and it is appealed to the supremes, and they deny to hear the appeal..That is, all above just let the original ruling stand as is....
Then at what level does this Judge's ruling stand??? US, 4th CC, just MD?
OK, the judge issues his injunction and it is appealed. The appeal is denied, and it is appealed to the supremes, and they deny to hear the appeal..That is, all above just let the original ruling stand as is....
Then at what level does this Judge's ruling stand??? US, 4th CC, just MD?
Frank Ettin
Administrator
It looks like you're positing that the 4th Circuit affirms the District Court. Then whatever opinion the 4th Circuit publishes affirming the District Court become the law in the 4th Circuit.hermannr said:
I suppose that the 4th Circuit could simply adopt the memorandum decision of the District Court, in which case, assuming the 4th Circuit publishes, that would be the law in the 4th Circuit.
What I don't know is if the Rules in the 4th Circuit would permit the court of appeals to issue a decision not certified for publication. That would be highly unusual when there is an unsettled question of law.
Daugherty16
New member
Another Dumb Question
Just yesterday i read Gura's appellate brief in Hightower, and found it compelling reading. It seems clear that in that case, as in Woolard, his argument is based on the USSC declaring the 2nd Amendment a fundamental right, elevating it to the same scrutiny and judicial tests that are embodied in the vast body of decisions on 1st Amendment questions. However, decisions related to free speech don't carry nearly the political or emotional weight as 2nd Amendment questions always seem to. People in general don't seem to fear free speech in the way so many seem to carry an irrational fear of firearms (in the hands of law-abiding citizens, no less).
Judges, like everyone else, have emotions and bias but their positions require them to set those aside in weighing evidence, argument and precedent (like that ever happens). Their positions also enable them to enforce their leanings on the masses, if so inclined. We've all seen decisions that used circular logic, or employ entirely new interpretations or applications of prior case law, to reach a desired and probably predetermined outcome. I think they call that legislating from the bench.
So here's the dumb question: anyone care to opine on how far from his prior leanings Judge Legg really reached here? I am trying to gauge whether Legg was brought around to this decision by a compelling legal argument, or whether he was already receptive to this position and this case provided a perfect medium for his viewpoint. By way of comparison, i'm thinking of the Hightower case and others that will use this same argument - was a fairly liberal judge persuaded by an airtight argument and is that likely to happen elsewhere, or did this case land in the lap of a judge already likely to rule in this way?
Some of the early posts indicated an expectation of unfavorable rulings. So i'm just asking for opinion here.
Just yesterday i read Gura's appellate brief in Hightower, and found it compelling reading. It seems clear that in that case, as in Woolard, his argument is based on the USSC declaring the 2nd Amendment a fundamental right, elevating it to the same scrutiny and judicial tests that are embodied in the vast body of decisions on 1st Amendment questions. However, decisions related to free speech don't carry nearly the political or emotional weight as 2nd Amendment questions always seem to. People in general don't seem to fear free speech in the way so many seem to carry an irrational fear of firearms (in the hands of law-abiding citizens, no less).
Judges, like everyone else, have emotions and bias but their positions require them to set those aside in weighing evidence, argument and precedent (like that ever happens). Their positions also enable them to enforce their leanings on the masses, if so inclined. We've all seen decisions that used circular logic, or employ entirely new interpretations or applications of prior case law, to reach a desired and probably predetermined outcome. I think they call that legislating from the bench.
So here's the dumb question: anyone care to opine on how far from his prior leanings Judge Legg really reached here? I am trying to gauge whether Legg was brought around to this decision by a compelling legal argument, or whether he was already receptive to this position and this case provided a perfect medium for his viewpoint. By way of comparison, i'm thinking of the Hightower case and others that will use this same argument - was a fairly liberal judge persuaded by an airtight argument and is that likely to happen elsewhere, or did this case land in the lap of a judge already likely to rule in this way?
Some of the early posts indicated an expectation of unfavorable rulings. So i'm just asking for opinion here.
Judge Legg is a very fair Judge, in that he does not rule by his own political leanings. He rules on what is before him.
In this case, the Judge did his homework. You can see this in doc #42 (dated July 19, 2011), where he lays out the questions he wants the parties to answer in the upcoming Summary Judgment Hearing. That hearing was held on July 21st. The transcript of the hearing was posted (presumably by Alan Gura) on August 25th (doc #44).
While the transcript is about 77 pages, you should read it to get an idea of what this judge is about.
Unlike the other District Judges, Judge Legg actually did what Heller demanded: He did the required historical research on what the amendment meant at the time it was ratified, and placed the context of "bear" within the context of "self defense." He didn't just use the specific remedy of Heller to justify a lame and inexcusable result, as so many of the other courts have done.
Using the guidance of the 4th Circuit in both Chester and Masciandaro, Judge Legg used a true Intermediate Scrutiny and found that the right to carry beyond the home was only a step away from where self defense is most acute, the home.
Whatever his leaning, there was only one outcome after that.
What is happening now, is that the Judge is dotting his "I's" and crossing his "T's" in order to have his ruling survive anything the 4th can throw at it. Procedural correctness, if you will.
The docket and the referenced docs, is here: http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html
In this case, the Judge did his homework. You can see this in doc #42 (dated July 19, 2011), where he lays out the questions he wants the parties to answer in the upcoming Summary Judgment Hearing. That hearing was held on July 21st. The transcript of the hearing was posted (presumably by Alan Gura) on August 25th (doc #44).
While the transcript is about 77 pages, you should read it to get an idea of what this judge is about.
Unlike the other District Judges, Judge Legg actually did what Heller demanded: He did the required historical research on what the amendment meant at the time it was ratified, and placed the context of "bear" within the context of "self defense." He didn't just use the specific remedy of Heller to justify a lame and inexcusable result, as so many of the other courts have done.
Using the guidance of the 4th Circuit in both Chester and Masciandaro, Judge Legg used a true Intermediate Scrutiny and found that the right to carry beyond the home was only a step away from where self defense is most acute, the home.
Whatever his leaning, there was only one outcome after that.
What is happening now, is that the Judge is dotting his "I's" and crossing his "T's" in order to have his ruling survive anything the 4th can throw at it. Procedural correctness, if you will.
The docket and the referenced docs, is here: http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.docket.html
For the casual reader, the key term is "publishes." Opinions may be designated as "published" or "unpublished." Published opinions are considered binding precedent but unpublished opinions are not. They could only be used for persuasive authority. Fourth Circuit Rule 32.1 does allow citation to unpublished opinions issued after 1/1/07. I would think the 4th Circuit would publish the opinion.
Frank Ettin
Administrator
Jim, in the 4th Circuit are there any standards or criteria for not certifying a decision for publication. I believe that in some jurisdictions an opinion would not be published only if it adds nothing new.KyJim said:
We now have a glimmering of how AG Gansler may attack the ruling by Judge Legg at the Circuit.
In the long timed-out case of Palmer v. D.C., Alan Gura noticed the court of the Woollard and Weaver cases, back on March 8th.
On March 16, D.C. made its response to those cases. http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.30.0.pdf It may be considered weak, but it is there, nonetheless.
Of course, on the 29th, Gura noticed Bateman. It may shed more light how D.C. responds to that.
In the long timed-out case of Palmer v. D.C., Alan Gura noticed the court of the Woollard and Weaver cases, back on March 8th.
On March 16, D.C. made its response to those cases. http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.30.0.pdf It may be considered weak, but it is there, nonetheless.
Of course, on the 29th, Gura noticed Bateman. It may shed more light how D.C. responds to that.