Woollard v. Sheridan: Cert Denied - see pg 14

It should not come as any surprise that today the Appellants/Defendants filed their Motion to Stay with the CA4 (I have yet to read it).

Here is the latest CA4 docket:

07/24/2012 54 DISTRICT COURT UPDATE. ORDER denying [67] Motion to Stay; dissolving the temporary stay entered by Order of March 30, 2012 effective 14 days following the issuance of this order. Signed by Judge Benson Everett Legg on 7/23/2012. [12-1437] (JB)

07/27/2012 55 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein and Charles M. Thomas, Jr. to exceed length limitations for motion. Date and method of service: 07/27/2012 ecf. [998904244] [12-1437] Matthew Fader

07/27/2012 56 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein and Charles M. Thomas, Jr. for stay pending appeal. Date of action to be stayed, if applicable:March 5, 2012 and April 2, 2012 orders that will be effective August 7, 2012 pursuant to order entered July 24, 2012... Date and method of service: 07/27/2012 ecf. [998904268] [12-1437] Matthew Fader

07/27/2012 57 NOTICE ISSUED to Mr. Alan Gura for Second Amendment Foundation, inc. and Raymond Woollard and Mr. Cary Johnson Hansel, III for Second Amendment Foundation, inc. and Raymond Woollard requesting response to Motion for stay pending appeal [56]Response due: 07/31/2012.[998904304].. [12-1437] (DL)
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I should note that the motion is in draft form, pending a grant of Motion to exceed length limitations (#55).
 

Attachments

Summary:

I. DEFENDANTS ARE LIKELY TO SUCCEED ON THE MERITS, WILL SUFFER IRREPARABLE HARM

II. DEFENDANTS HAVE A STRONG LIKELIHOOD OF SUCCESS ON THE MERITS

III. THE LIKELIHOOD OF IRREPARABLE HARM IN THE ABSENCE OF A STAY FAVORS GRANTING A STAY

IV. CONSIDERATION OF POTENTIAL INJURY TO OTHER PARTIES FAVORS GRANTING A STAY

V. THE PUBLIC INTEREST FAVORS GRANTING A STAY

VI. WE REALLY HATE THAT WE HAD OUR BEHINDS HANDED TO US BY JUDGE LEGG

VII. IT'S FOR THE CHILDREN, THE SKY WILL FALL, BLOOD WILL RUN IN THE STREETS, AND OTHER FAMILIAR THEMES



Ok, I added, VI and VII myself. Seriously what else can they say? They have to argue the law but I have this sense that it is a perfunctory exersize.
May this be quickly denied so Marylanders can finally get to exercising their rights.
 
I just finished a brief read of the Motion.

This is nothing more than a condensed version of their merits brief (which was a condensed version of all their pleadings at district) combined with their brief at district to continue the stay, all of which Judge Legg found unpersuasive. They have made no new arguments that undercuts Judge Leggs decisions, let alone any argument that Judge Legg abused his discretion in dissolving the stay at district.

I expect the Motions Panel to find the same.
 
The courts decision on granting a stay will definitely be the deciding factor on whether or not we will win IMHO. If the court rules that the stay is unwarranted the chances of them finding for the state is going to be near-zero. If they rule the stay is warranted, that constitutional rights can be abridged while a decision is being handed down, it will not bode well for us.
 
The courts decision on granting a stay will definitely be the deciding factor on whether or not we will win IMHO. If the court rules that the stay is unwarranted the chances of them finding for the state is going to be near-zero. If they rule the stay is warranted, that constitutional rights can be abridged while a decision is being handed down, it will not bode well for us.
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Motion's Panel != Merits Panel
 
While I am delighted with Judge Legg's lifting of the stay I am more than a little surprised it was issued immediately after the tragedy in Colorado. I hope we don't live to regret this.

I also find it disheartening that MD continues to reject citizen's right to self defense, as ruled in Heller, all while providing state officials with personal security at the citizen's expense. Talk about privilege. The police don't prevent crime, they only investigate crime after the fact. But state officials have personal security specifically to prevent crimes against themselves, their families, and their property & possessions. The state continues to deny citizens any defense at all while over-protecting themselves. From us. It's truly absurd. This is one of the principal protections of the 2nd Amendment as ruled in Heller. IMHO.

Here's hoping the 4th won't reinstate the stay, but I'm pretty sure they will. Bad timing & too much politics.
 
You know what's funny?

Circuit Appeals court Stay requests are typically accompanied by reasons why a Judge abused his discretion.

I searched using Adobe's finder tool, and nothing in there about "abuse of discretion" and the word "discretion" is only in there once.
 
Gray, I really believe this brief was perfunctory. I'm sure someone will come along to tell me I am naive, but I think they have lost the will to fight this, but they have to appear to be trying.
 
Gura's response to the MD merits brief is in. Don't be scared of the length (100 pages), as the first 21 pages are TOC & TOA, and the last 10 are an appendix.

Tomorrow we will see his response to the motion to stay.
 

Attachments

As always, Alan Gura's writing style is an easy read and settles lightly on the mind. Since the Appellant/Defendant has used most of the same arguments as they did at district court, Mr. Gura uses almost all of the allowable 14K words to rebut not only the State, but some of the State's amici briefs. He doesn't mince words here.

Of the many things he does say, I have to bring one quote to everyone's attention!

In showing that the right is not a right bound to the front stoop, by quoting Dred Scott and Cruikshank, Alan Gura goes on to say:

The Court later observed that “during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could [not] require the American Judiciary to assure them . . . [the] right to bear arms as in the Second [Amendment] . . .” Johnson v. Eisentrager, 339 U.S. 763, 784 (1950). The reference was not limited to home self-defense.
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pp 22 (pp 43 of the pdf).

The above brought several chuckles to my lips and my wife nearly fell off her chair, laughing so hard!

In dealing with the amici, the following is typical of his writing style:

Second Amendment author James Madison understood that the “bearing” of arms extended beyond the home. In 1785, Madison introduced in Virginia’s legislature a hunting bill drafted by Thomas Jefferson. Regarding “whoever shall offend against this act,” it stated:
f, within twelve months after the date of the recognizance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, it shall be deemed a breach of the recognizance, and be good cause to bind him a new, and every such bearing of a gun shall be a breach of the new recognizance. . . .​

A Bill for Preservation of Deer (1785), in 2 PAPERS OF THOMAS JEFFERSON 443-44 (J. Boyd ed., 1950) (emphases added).9



9Defendants’ amici Historians, at 6, omit the words “recognizance” and “whoever shall offend” from the bill in falsely stating it applied to “any person,” and evinced Jefferson’s alleged “view that firearms rights did not extend beyond one’s property.”
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pp 31 (pp 52 of the pdf).

Here, Alan Gura is directly telling the court that the amici Historians have lied to the court. In doing this, it calls into question the validity of any other thing that this amici has said.

Next Monday, we will have some amici briefs for the Appelles/Plaintiffs. I noted the following on pp 49-50 (pp 70-71 of the pdf):

Unsurprisingly, Defendants and their amici’s historical vision plainly conflicts with Heller, McDonald, and the sources described therein. It will not be accepted by the Supreme Court. An amicus brief by academics whose Second Amendment scholarship the Supreme Court endorsed will address Defendants’ amici in greater detail.
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That might suggest only a single amicus. However, on pp 63 (pp 84 of the pdf), we find this:

Plaintiffs’ amici will fully present the criminological evidence confirming the People’s wisdom in ratifying the Second Amendment.
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Regardless, I'll stop my quoting here. You may find other, equally good quotes of your own, should you take the time to actually read this brief. It's not only an easy read, it is an easily understandable read.
 
The Court later observed that “during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could [not] require the American Judiciary to assure them . . .
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Interesting. In the last century, we armed ourselves against werewolves, now we've progressed to arming ourselves against zombies. :rolleyes::D:D:D

I've also read Gura's brief at length. The way the man has covered all the bases is phenomenal, and I, too, took particular glee in his debunking of the opposing amici's briefs. :cool:
 
By the end of my lunch hour today, I was only halfway through my reading of the Piszczatoski reply brief. I knew that by the time I came home from work, Alan Gura's response to MD's Motion to Stay, would be in. It was, so I have stopped reading the other brief to read this one.

The State filed late Friday afternoon (the 27th). That same day, the CA4 ordered Gura to file a response by the next Tuesday (today). So Carl Hansen and Alan Gura had, at most, 4 days to craft a response, assuming they worked all weekend on the response.

Considering Gura had to polish and finish off his reply to the State in the CA4 appeal (Woollard) and also the appeal at CA3 (Piszczatoski - even if David Jensen wrote most of it). So Monday was mostly shot. That brings it down to a mere 3 days.

So it does not surprise me that there are some typos and gaffs in this brief. Some are glaring, some are subtle. They are there, nonetheless. Can you find them?

Regardless, it does not detract from the brief.

Arguments based on the supposed general social ills Maryland claims to be associated with firearms have been rejected by the United States Supreme Court. Moreover, the more persuasive research stands staunchly in favor of the right to keep and bear arms. However, the Court need not examine the thousands of pages of social science on the issue.

Simply put, this case is not a constitutional convention. Our roles are not to debate the wisdom of the Second Amendment. The policy decisions embodied therein were made at the time of its enactment. The Court should pay no more heed to hysterical claims of gun violence than countenance arguments about the supposed ill effect of permitting speech protected by the First Amendment.

The Second Amendment is part of the fabric of our constitution and our society. Whether Maryland might prefer to write it out of the constitution based on faulty pseudo-social science is completely irrelevant.
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Have you figured out what Gura is doing, yet? How about this one:

This ruling - ending government encroachment upon our constitutional rights - is not the proper subject of a stay. No state is entitled to a reprieve to continue violating the rights of its citizens.
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Not yet? Try this one:

The defense opens its argument by seriously misstating the primary issue before the Court. The suggestion is made, at page 8 of the defense brief, that this Honorable Court is asked to decide whether the Second Amendment secures the right to bear arms for an individual who “cannot demonstrate a reasonable self-defense or other justification.” Whether or not an individual can satisfy the government that he or she has substantial justification to exercise a constitutional right falls well short of the point. The issue in this case is whether the government can make such a demand of individuals seeking to exercise their rights in the first instance.

This fundamental distinction reveals the fallacy in the Defendants’ approach to the entire issue. The defense starts from the premise that the Second Amendment does not protect the right to bear arms generally in public (even allowing for reasonable regulation of time, place and manner). All of the defense argument thereafter flows from this fundamental fallacy.

Mistaken as it is in its conclusion, the defense strategy is understandable in that it is the only real avenue available. Unless the defense meets its heavy burden of establishing a high likelihood of success on the merits – which manifestly it cannot - the requested stay should be denied.
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For those that aren't getting it: Alan Gura is writing with the tone of a victor who fully expects the States appeal to fail. If you read this opposition brief, you will find this tone, throughout. It is a departure from what we have read before. Here, instead of trying to convince the court of his position, he is writing as one who is in firm control of the outcome.

And why shouldn't he? This is a great vehicle to use to deny the stay.

Now, back to reading the Piszczatoski reply brief.
 

Attachments

Al Norris said:
Here, Alan Gura is directly telling the court that the amici Historians have lied to the court. In doing this, it calls into question the validity of any other thing that this amici has said.
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Even for a bunch of gun grabbers, it's surprising that their historians would be so bold as to intentionally misquote a famous historical figure whose views are central to the point under consideration. That they would do so is further proof (as if we needed any) that the opposition is not only devoid of intellectual integrity, but stupid as well.

Did they really think he wouldn't check their quotation?
 
Great read, gents, and well worth the time. Laughed a bit at police officers "upholstered" firearms, but I am sure that the Judge will read the context. Gura and associates make me proud. This is going to make the state squirm. Well done.


Willie

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Fantastic brief as always. Airtight, IMO.

Besides those already mentioned (which I missed), I found a couple minor typos.

2D at page 34 :

D. DEFENDANTS CANNOT ESTABLISH A SHOWING OF IRREPARABLE INJURY IF THE STAY WERE DENIED.
Defendants contend that they will suffer irreparable injuries in the absence of a stay of the district court’s ruling. Defendants offer three agreements in support of this contention:
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Bolded should be arguments.


Page 24:
In Masciandro, the Court determined that immediate scrutiny is the proper standard of review for issues related to the Second Amendment.
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Bolded should be Masciandaro
 
They're still winning on the merits, and the path of this case isn't all that different from the one that Heller and McDonald took.
 
Any opinions from our resident "I'm a Lawyer but I'm not your Lawyer" sorts on how this fits in with your expectations and how things are "best guess" likely to proceed, with us fully understanding that it's just going to be an educated "gut check best guess"?


Willie


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