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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #681  
Old 09-19-2018, 10:34 AM
surfgeorge surfgeorge is offline
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Panel asked Young counsel for response to state's petition for en banc. Have 21 days to respond.

I sincerely hope Young counsel poke a ton of serious holes in that load of crap and lies the from the 11 lawyers representing the state and county.
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  #682  
Old 09-19-2018, 1:56 PM
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Why on earth would Wolfwood argue that open carry can be banned in favor of concealed carry when the original panel said, per Peruta, that concealed carry is not a right in the Ninth Circuit? Peruta applies to Hawaii as well. Hence, if there is a right to bear outside the home, then it must be open carry. The real argument is whether the State can permissibly regulate open carry through a licensing system, and whether that system is unconstitutional if it results in no one other than security guards from getting such permits. Or to put it another way, can the State ban the vast majority of its residents from exercising a right to bear arms without violating the Second Amendment? (We know what the answer will be, we just have to wait to see how they finesse it.)
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  #683  
Old 09-19-2018, 2:35 PM
surfgeorge surfgeorge is offline
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The request is for a response to the state petition arguments for an en banc hearing, not to submit a brief on the merits of the case. Any claims or arguments about whether a state can ban some manner or other of bearing arms is not germane to the state's arguments for re-hearing en banc, and thus would be superfluous and useless.

It's pretty simple really. Here are the proper responses to the state's arguments:

I. No.

II. No.

III. No.

IV. So?

Of course Young counsel will have to flesh those out, at least a little bit, so judges O'Scannlain and Ikuta can ostensibly point to something written by plaintiff counsel when denying the en banc petition.
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  #684  
Old 09-20-2018, 9:19 AM
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If the states en banc gets denied, can the 9th come over top of that and request it themselves?
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  #685  
Old 09-20-2018, 10:21 AM
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Originally Posted by sfpcservice View Post
If the states en banc gets denied, can the 9th come over top of that and request it themselves?
I suspect so. The 9th seems to be able to make up rules as it goes, and ignore the rules it does not like.
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  #686  
Old 09-20-2018, 11:17 AM
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Originally Posted by sfpcservice View Post
If the states en banc gets denied, can the 9th come over top of that and request it themselves?
Yes. That's exactly what happened with Peruta. Panel denied en banc petition. Sua sponte call by a judge for a vote by the entire court. Court voted for en banc. En banc panel overturned Peruta. Rinse and repeat. Any questions?

Last edited by surfgeorge; 09-20-2018 at 11:19 AM..
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  #687  
Old 09-20-2018, 12:21 PM
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Originally Posted by mrrabbit View Post
"Open Carry can be banned in favor of concealed carry"
I really hope Alan have read the panel opinion that highlighted that this is NOT a winning argument.

Open Carry is a right and can not be banned. Concealed Carry can be banned. Just "Carry" is of now is undefined by Supreme Court and can not be asked for.
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  #688  
Old 09-20-2018, 12:34 PM
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Originally Posted by TruOil View Post
The problem of course that Scalia's statements about "carry" are technically dicta (since this was a pure "keep" case) and not binding on other courts--as some courts (whose names we need not intone) have (gleefully) concluded.

Now obviously I think that Scalia is correct, the right exists outside the home, and even the State of California admitted as much during argument in Peruta. The problem is elevating that right to a strict scrutiny concern not subject to the sliding scale vagaries of "public security."
Sorry to come back to this, but just reread McDonald. If this is dicta, why does McDonald cite it as "held"? This is the SCOTUS citing SCOTUS, so it seems like they'd know what they held. Still trying to understand the nuances.

From the first page of McDonald v City of Chicago:
Quote:
Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.
reference is way back from post #680

Last edited by ritter; 09-20-2018 at 12:35 PM.. Reason: clarification
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  #689  
Old 09-20-2018, 1:06 PM
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Originally Posted by mrrabbit View Post
The fact that you said the above...and have been in this thread for quite some time and that that NRA/CRPA/SAF/ETC lawyers with a history of arguing as such are probably going to come on board . . . requires me to conclude with the following:

PAY ATTENTION!

That's what I say when people either:

1. Literally don't pay attention.
2. Ignore that which is already known in their arguments or statements.

If members of the so-called "legal dream team" for gun rights do hop aboard, that is exactly the twist and risk they might take - trying to pull a pure CCW win out of a temporary OC win.

And that is what will allow Hawaii to escape the corner they are in - CA9 pulling a Heller or a Peruta in which SCOTUS declines cert.


And of course, we'd be treated to probably another great quote from Justice Thomas - like the one already in my sig.

=8-|
Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).
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  #690  
Old 09-20-2018, 1:42 PM
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Originally Posted by TruOil View Post
should argue that open carry can be banned in favor of open carry.
Such a ban I can live with.
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  #691  
Old 09-20-2018, 3:08 PM
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Originally Posted by TruOil View Post
Why on earth would Wolfwood argue that open carry can be banned in favor of concealed carry when the original panel said, per Peruta, that concealed carry is not a right in the Ninth Circuit? Peruta applies to Hawaii as well. Hence, if there is a right to bear outside the home, then it must be open carry. The real argument is whether the State can permissibly regulate open carry through a licensing system, and whether that system is unconstitutional if it results in no one other than security guards from getting such permits. Or to put it another way, can the State ban the vast majority of its residents from exercising a right to bear arms without violating the Second Amendment? (We know what the answer will be, we just have to wait to see how they finesse it.)
Preserve the argument for SCOTUS?
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  #692  
Old 09-20-2018, 3:16 PM
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Originally Posted by sfpcservice View Post
If the states en banc gets denied, can the 9th come over top of that and request it themselves?
If en banc is denied then it is because more judges voted NOT to hear it, they won't reverse themselves.

The Peruta situation was different. The defendants opted not to file en banc and one judge (probably Chief Thomas) went sua sponte and called for the vote to happen anyway.
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  #693  
Old 09-20-2018, 3:24 PM
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[QUOTE=TruOil;22135119]Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).[/QUOTE]

I agree with this. But then they'd be teeing up an OC licensing scheme for SCOTUS in which only security guards have received permits. Even though the 3 judge panel's opinion is wiped out within the 9th, it's still going to be part of the record for the SCOTUS appeal.
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  #694  
Old 09-20-2018, 3:27 PM
TruOil TruOil is offline
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[QUOTE=press1280;22135521]
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Originally Posted by TruOil View Post
Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).[/QUOTE]

I agree with this. But then they'd be teeing up an OC licensing scheme for SCOTUS in which only security guards have received permits. Even though the 3 judge panel's opinion is wiped out within the 9th, it's still going to be part of the record for the SCOTUS appeal.
I am aware of that--but I think that the AG's opinion is intended to put that at least theoretically to rest, allowing them to (try to) argue that the chiefs were merely "misinterpreting" the statutes. It is very much a Hail Mary, in the sense that the court is supposed to review cases as they were developed in the trial courts, not on new matters not previously considered, and particularly not arguments not presented in the trial court. As it did in Peruta, the en banc panel will conveniently ignore these "rules."
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  #695  
Old 09-20-2018, 4:05 PM
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[QUOTE=TruOil;22135538]
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Originally Posted by press1280 View Post

I am aware of that--but I think that the AG's opinion is intended to put that at least theoretically to rest, allowing them to (try to) argue that the chiefs were merely "misinterpreting" the statutes. It is very much a Hail Mary, in the sense that the court is supposed to review cases as they were developed in the trial courts, not on new matters not previously considered, and particularly not arguments not presented in the trial court. As it did in Peruta, the en banc panel will conveniently ignore these "rules."
So do you think the AG has essentially conceded that the police chiefs have been assuming OC permits are only for security guards?
If that's the case, then shouldn't en banc be denied since the law is (somewhat) changed, and this should go back to the district court with the 3 judge panel's opinion as their guide under the new AG opinion?
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  #696  
Old 09-20-2018, 4:55 PM
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[QUOTE=press1280;22135667]
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So do you think the AG has essentially conceded that the police chiefs have been assuming OC permits are only for security guards?
If that's the case, then shouldn't en banc be denied since the law is (somewhat) changed, and this should go back to the district court with the 3 judge panel's opinion as their guide under the new AG opinion?
The law, i.e. the statue, hasn't changed at all. I am guessing there are no prior cases interpreting the language. So the AG opinion is all the guidance that is "needed." According to the AG, the law itself isn't unconstitutional, just that it has been "inadvertently" (and of course reasonably and excusably) misinterpreted. His opinion (which is all that it is) is all the guidance that is needed, Nonetheless, the Ninth en banc will gleefully adopt his opinion, because they know full well that it will take any number of years to show that the sheriffs/police chiefs have not changed their behavior and are unconstitutionally refusing to consider/refusing to issue carry applications from persons not in the security industry. Delay is good!
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  #697  
Old 09-20-2018, 9:25 PM
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[QUOTE=mrrabbit;22135976]
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Then what you are saying then is:

1. Court will go en banc.
2. AG will have chief issue permit for either.
3. Case is then mooted.

in other words, Heller.

=8-)
More like post-Heller. The direct holding in the case was to invalidate a single statue or group of DC statutes regulating possession of firearms in the home. Heller did not consider licensing or permit schemes, nor did it consider carry outside the home. Heller I did not ask for "bear"; that came later in other cases. Read into Heller all you want, but courts do not issue advisory opinions on matters not addressed by the issues brought by the parties. Which is why there were later cases--cases as you well know that came to contradictory conclusions as to the scope of the right and, critically, the standard of review, questions that Scalia's majority opinion left wide open.
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  #698  
Old 09-21-2018, 3:30 PM
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Again...go read Heller. Note how it ended.

=8-/
How many appeals courts have concluded that "bear" is not within the core right guaranteed by the Second Amendment? And how many of those cases cited Heller for that proposition? And after concluding that it is not a core right, how many applied their diluted excuse for "intermediate scrutiny"? Since all of these courts read Heller, it is safe to assume that they concluded that the bear issue had not been foreclosed. Read the AG's petition in Flanagan which all but argues that there is no right to openly bear arms in any incorporated ci8ty or town, notwithstanding the fact that you are far more likely to be assaulted in one of those crowded metropolitan areas than in the open country or out in the forest (because people are few and far between, and the only need for self defense in most cases is from creatures on four legs). The right as Becerra sees it is limited to private property and while hunting, camping and hiking. I wonder where he got that idea? Not from the Second Amendment!
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  #699  
Old 09-23-2018, 3:27 AM
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Originally Posted by mrrabbit View Post
Again, read how the Heller case . . .

E N D E D


YOU put forth that proposition that the AG in his en banc request was possibly taking the position that authorities simply didn't understand or implement policy correctly.

IF YOUR INTERPRETATION IS TRUE . . .

That means en banc can be approved simply to allow the authorities to issue to Young.

If Young agrees - case is moot . . . there's nothing further to declare, discuss, or even any action to take.


Just like in Heller, where Scalia in making his judgment comes to a halt - because DC decided to issue to Heller at the last minute, and Heller agreed.


Scalia closing words in judgement would have been much more extensive had that not happened in Heller v. DC.


YOU brought up a possible interpretation - I simply extended it and analyzed it for you.

YOUR interpretation angle you presented is certainly possible...

YOU may turn out to be right in how this moves forward and ends...

Don't react to me, take a deep breath, think through the implication of what you pointed out.


It is actually right in line with the two possibilities I pointed out should Wolfwood enlist the help of members of the "dream team" whose history is trying to to get a win for CCW - even at the expense of OC.

=8-|
Pretty ballsy if they do so and only intend to issue to Young (and continue to implement a no-issue scheme). He's been denied under both the citizen CCW and the security-guard-issue-only OC permit.
IIRC Young didn't have major death threats over his head so it's not like the situation in Drake where the original plaintiff had been kidnapped and taken halfway across the country and a permit was eventually issued to him to try to show his situation was different.
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  #700  
Old 09-23-2018, 4:08 PM
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Pretty ballsy if they do so and only intend to issue to Young (and continue to implement a no-issue scheme). He's been denied under both the citizen CCW and the security-guard-issue-only OC permit.
IIRC Young didn't have major death threats over his head so it's not like the situation in Drake where the original plaintiff had been kidnapped and taken halfway across the country and a permit was eventually issued to him to try to show his situation was different.
I will no longer respond to rabbit, as he puts words in my mouth that I did not speak and makes arguments that i cannot interpret or that make no sense. That said, an en banc panel could reverse on the basis of the Hi AG opinion, and the chief could STILL refuse to issue Mr. Young for failing to show sufficient "cause." And as I said previously, it would take any number of years before sufficient evidence of a "no issue" policy was developed before another challenge could be brought. Flanagan is different in the sense that California has an express open carry ban in all urban areas, while Hawaii has an implied one on every island. In Flanagan, Becerra argues that banning open carry in urban areas is in the public interest, and that the public interest trumps the right, a position that can be affirmed under the Ninth Circuit's lame excuse for intermediate scrutiny, as well as the similarly lame standard applied in the 2d, 3rd and 4th Circuits. Only DC has expressly concluded that "bear" is a core right under the 2A and subject to strict scrutiny. That decision was not appealed because NY and Ca wanted to prevent that "poison" from spreading. Unless and until the Supreme Court holds that the "bear" part of the 2A is a core right AND subject to strict scrutiny, we will not see open carry, loaded or unloaded, in California.
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  #701  
Old 09-24-2018, 4:00 PM
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https://www.scribd.com/document/3893...n-Amicus-Brief

https://www.scribd.com/document/3893...f-the-Counties
https://www.scribd.com/document/3893...Gabby-Giffords

amicus briefs came in for the other side
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  #702  
Old 09-24-2018, 6:23 PM
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I'm not a lawyer but the Everytown one sounds like weird word salad.

The Giffords one they're bring back the good old chestnut "Collective Right" saying "Bear Arms" is a military term meaning only soldiers on a battle field, it's a joke.
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  #703  
Old 09-24-2018, 9:16 PM
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I haven't looked at the briefs in a long time--did the county ever argue that open carry permits were not limited to security guards but available to anyone? Or is this an entirely new argument never considered by (a) the trial court, (b) the original panel? If the latter, hasn't the argument been waived?
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  #704  
Old 09-25-2018, 4:41 AM
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Originally Posted by TruOil View Post
I haven't looked at the briefs in a long time--did the county ever argue that open carry permits were not limited to security guards but available to anyone? Or is this an entirely new argument never considered by (a) the trial court, (b) the original panel? If the latter, hasn't the argument been waived?
Yep, the Hawaii AG issued a letter attempting to interpret their open carry statute as not being limited to professional security guards... after the court decision... even though there’s never been an open carry permit issued to anyone that was not a security guard.

They’re obviously trying to muddy the water after the fact and one can hope that would never fly but this is the 9th.

Here’s the Hawaii AG letter, issued sept 11
http://ag.hawaii.gov/wp-content/uplo...n-No.-18-1.pdf
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Old 09-25-2018, 7:50 AM
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I will no longer respond to rabbit, as he puts words in my mouth that I did not speak and makes arguments that i cannot interpret or that make no sense. That said, an en banc panel could reverse on the basis of the Hi AG opinion, and the chief could STILL refuse to issue Mr. Young for failing to show sufficient "cause." And as I said previously, it would take any number of years before sufficient evidence of a "no issue" policy was developed before another challenge could be brought. Flanagan is different in the sense that California has an express open carry ban in all urban areas, while Hawaii has an implied one on every island. In Flanagan, Becerra argues that banning open carry in urban areas is in the public interest, and that the public interest trumps the right, a position that can be affirmed under the Ninth Circuit's lame excuse for intermediate scrutiny, as well as the similarly lame standard applied in the 2d, 3rd and 4th Circuits. Only DC has expressly concluded that "bear" is a core right under the 2A and subject to strict scrutiny. That decision was not appealed because NY and Ca wanted to prevent that "poison" from spreading. Unless and until the Supreme Court holds that the "bear" part of the 2A is a core right AND subject to strict scrutiny, we will not see open carry, loaded or unloaded, in California.
I'm not sure about that. HI is asking that it's OC scheme be looked at in the same light as the CCW scheme. No CCW permits issued in HI county since 2000.
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Old 09-25-2018, 8:47 AM
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Originally Posted by TruOil View Post
I haven't looked at the briefs in a long time--did the county ever argue that open carry permits were not limited to security guards but available to anyone? Or is this an entirely new argument never considered by (a) the trial court, (b) the original panel? If the latter, hasn't the argument been waived?
http://michellawyers.com/young-v-hawaii/

Just reading the briefs post-Peruta en banc, it's stated by Young that the OC permit is limited to security personnel, while the county never specifically addresses it. I'll have to look at the Baker briefings and see if the state has made any remarks on OC there.
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Old 09-25-2018, 11:48 AM
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I'm not sure about that. HI is asking that it's OC scheme be looked at in the same light as the CCW scheme. No CCW permits issued in HI county since 2000.
At least. That's when the mandated reporting began. My letter from former chief Kubojiri (that was submitted into the record) stated that during his 25 years on the force he had never heard of one being issued, and that he had never heard of one ever being issued.

The counties' amicus quotes the Kauai issuance of two CONCEALED licenses in 2006 (to a judge) and 2013 (for 12 [EDIT: My bad, not 12, but 9 (nine)] days to a military member or their family member) as evidence that they have not prohibited anyone who "has a need for protection that substantially exceeds that held by ordinary law-abiding citizens" from obtaining a license of some kind. Of course they argue that the right to bear arms is not infringed by issuing two licenses in the entire history of the department, because only those two people met the "criteria".

The amicus brief doesn't point out that the other county police chiefs, in their "declarations", fail to mention that none of them, or their departments, have EVER issued any kind of license, much less an unconcealed carry license, to anyone other than a security guard. EVER. Now why did they not make a point of that?


Last edited by surfgeorge; 09-25-2018 at 1:30 PM..
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Old 09-25-2018, 1:38 PM
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At least. That's when the mandated reporting began. My letter from former chief Kubojiri (that was submitted into the record) stated that during his 25 years on the force he had never heard of one being issued, and that he had never heard of one ever being issued.

The counties' amicus quotes the Kauai issuance of two CONCEALED licenses in 2006 (to a judge) and 2013 (for 12 [EDIT: My bad, not 12, but 9 (nine)] days to a military member or their family member) as evidence that they have not prohibited anyone who "has a need for protection that substantially exceeds that held by ordinary law-abiding citizens" from obtaining a license of some kind. Of course they argue that the right to bear arms is not infringed by issuing two licenses in the entire history of the department, because only those two people met the "criteria".

The amicus brief doesn't point out that the other county police chiefs, in their "declarations", fail to mention that none of them, or their departments, have EVER issued any kind of license, much less an unconcealed carry license, to anyone other than a security guard. EVER. Now why did they not make a point of that?

The point I was making is that the chiefs have always interpreted the statute as guards only, but now with the "clarification" from the DA, then you arguably have to wait to see what those chiefs do afterwards. Its not like we can't predict the answer--that no one has sufficient good cause--but it would need to be proved a la the case in D.C showing no issuance except to the privileged few under their "may issue" CCW scheme. Plus you have to look at open carry certs only. As the panel decision states, Peruta forecloses the CCW issue; the non-issuance of CCW permits is therefore a nonissue. Is there any evidence as to the number of open carry permits issued, and more importantly, wto whom they were issued?
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  #709  
Old 09-25-2018, 2:16 PM
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No, no , no... you guts don't get it. The AG is making the case himself that there is no "right" to carry in Hawaii (emphasis added by me):

Quote:
An applicant must satisfy four criteria to obtain an unconcealed-carry license:...
To satisfy these requirements, an applicant must demonstrate, among other things, that he or she has a need for protection that substantially exceeds that held by ordinary law-abiding citizens.
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Old 09-25-2018, 2:32 PM
surfgeorge surfgeorge is offline
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No, no , no... you guts don't get it. The AG is making the case himself that there is no "right" to carry in Hawaii (emphasis added by me):
They're arguing that their criteria to issue the licenses is legal both as a "presumptively lawful longstanding" regulation, AND that the bearing of arms outside the home is not a "core" part of the Second Amendment-protected right (which might require strict scrutiny), among other things (panel mis-understood the actual law, etc.). Thus they are claiming there is a "right" to bear arms outside the home, but that "right" may be regulated, you know, by a "few commonsense gun safety regulations". The fact that those few commonsense gun safety regulations result in zero unconcealed carry licenses EVER (to anyone other than security employees), is irrelevant.

We know that is a total pile of horse****. And I'm betting O'Scannlain and Ikuta concur in that view. Watch the orals and look at O'Scannlain's face and listen to the tone of his voice when he challenges the county attorney when he claims that unconcealed carry really has been available all along to "ordinary law-abiding citizens". He wasn't happy.

En banc petition denied.

Then Sidney Thomas will call for an en banc vote again.

Last edited by surfgeorge; 09-25-2018 at 2:34 PM..
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  #711  
Old 09-25-2018, 2:50 PM
surfgeorge surfgeorge is offline
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The point I was making is that the chiefs have always interpreted the statute as guards only, but now with the "clarification" from the DA, then you arguably have to wait to see what those chiefs do afterwards. Its not like we can't predict the answer--that no one has sufficient good cause--but it would need to be proved a la the case in D.C showing no issuance except to the privileged few under their "may issue" CCW scheme. Plus you have to look at open carry certs only. As the panel decision states, Peruta forecloses the CCW issue; the non-issuance of CCW permits is therefore a nonissue. Is there any evidence as to the number of open carry permits issued, and more importantly, wto whom they were issued?
The state reports the county stats on two categories of carry licenses: SECURITY and CITIZEN. The "citizen" applications are all for concealed. The licenses in the "security" division are all, exclusively as far as we know, to employees of security firms, but there is no designation as to how many of those are concealed and how many are unconcealed. I'm trying to find that out, as well as how many of those "security" unconcealed licenses have been granted to "ordinary law-abiding citizens", but as you can well imagine, I'm getting stonewalled. They don't want to make public that the "citizen" and "security" divisions are really "concealed" and "unconcealed", as that belies their absurd claims.

Further evidence of this is that the counties' amicus brief makes a big deal of Kauai PD issuing (the only) two concealed licenses in, well, forever in the state of Hawaii for which there is any extent data (the other two issues in 2001 on Maui appear to be gone, and they are not mentioned in the brief). If they had one scintilla of evidence that anyone anywhere at any time in Hawaii, other than a security guard had ever been issued an unconcealed license, they would have led off the brief with it. They didn't, because they don't, because there aren't.

Their argument that just because no one has ever gotten an unconcealed license doesn't mean that no one COULD have gotten one... is preposterous, especially given that people have been (anecdotally) told that they cannot even apply for an open carry license unless they have proof of employment for a security firm.

My understanding is that a number of people have already applied for the unconcealed licenses and should be getting their denial letters shortly. Then we have to go from there pending the next stages of Young and maybe Nichols.

Last edited by surfgeorge; 09-25-2018 at 2:52 PM..
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  #712  
Old 09-25-2018, 3:03 PM
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En banc petition denied.

Then Sidney Thomas will call for an en banc vote again.
At least it got denied... once.
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Old 09-25-2018, 5:00 PM
TruOil TruOil is offline
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The state reports the county stats on two categories of carry licenses: SECURITY and CITIZEN. The "citizen" applications are all for concealed. The licenses in the "security" division are all, exclusively as far as we know, to employees of security firms, but there is no designation as to how many of those are concealed and how many are unconcealed. I'm trying to find that out, as well as how many of those "security" unconcealed licenses have been granted to "ordinary law-abiding citizens", but as you can well imagine, I'm getting stonewalled. They don't want to make public that the "citizen" and "security" divisions are really "concealed" and "unconcealed", as that belies their absurd claims.

Further evidence of this is that the counties' amicus brief makes a big deal of Kauai PD issuing (the only) two concealed licenses in, well, forever in the state of Hawaii for which there is any extent data (the other two issues in 2001 on Maui appear to be gone, and they are not mentioned in the brief). If they had one scintilla of evidence that anyone anywhere at any time in Hawaii, other than a security guard had ever been issued an unconcealed license, they would have led off the brief with it. They didn't, because they don't, because there aren't.

Their argument that just because no one has ever gotten an unconcealed license doesn't mean that no one COULD have gotten one... is preposterous, especially given that people have been (anecdotally) told that they cannot even apply for an open carry license unless they have proof of employment for a security firm.

My understanding is that a number of people have already applied for the unconcealed licenses and should be getting their denial letters shortly. Then we have to go from there pending the next stages of Young and maybe Nichols.
I have little doubt that there are few if any "citizen" open carry permits, but what the State will argue is that the police have simply "gotten it wrong" all these years, and from now on citizens will be considered along with guards for open carry permits. Is it a stall. Well, yeah! After that devastating decision of the original panel, these guys are grasping at any straw they can to prevent their system from disappearing. WHY, THERE'LL BE BLOOD IN THE STREETS, I TELL YOU! IT WILL BE THE WILD WEST ALL OVER AGAIN!!! WE MUST DO SOMETHING!!! Right now, the only thing they've got going for them is that the AG's opinion is a plausible interpretation of the statute. I wonder if they realize that this will establish that the police chiefs have been violating citizens civil rights for decades by refusing to consider citizen applications. (They must--and that is why you are getting the bium's rush on your records requests.)
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Old 09-25-2018, 7:08 PM
surfgeorge surfgeorge is offline
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I have little doubt that there are few if any "citizen" open carry permits, but what the State will argue is that the police have simply "gotten it wrong" all these years, and from now on citizens will be considered along with guards for open carry permits. Is it a stall. Well, yeah! After that devastating decision of the original panel, these guys are grasping at any straw they can to prevent their system from disappearing. WHY, THERE'LL BE BLOOD IN THE STREETS, I TELL YOU! IT WILL BE THE WILD WEST ALL OVER AGAIN!!! WE MUST DO SOMETHING!!! Right now, the only thing they've got going for them is that the AG's opinion is a plausible interpretation of the statute. I wonder if they realize that this will establish that the police chiefs have been violating citizens civil rights for decades by refusing to consider citizen applications. (They must--and that is why you are getting the bium's rush on your records requests.)
Not really. The state and counties argue that the unconcealed carry licenses have ALWAYS been available to ordinary law-abiding citizens who met the criteria as outlined in the recent AG opinion. The fact that none have EVER been issued is merely a coincidence, don't you know.

The declarations by both the Honolulu PD chief and the Kauai PD acting chief have verbatim identical phrases and sentences throughout their declarations, including: "[T]he Attorney General's opinion comports with the [HPD's/KPD's]
past and current practice."

And we know they can't be lying, because both declarations are signed immediately below this statement: "I declare under penalty of perjury that the foregoing is true and correct." When was the last time a Hawaii police chief lied? I mean besides HPD's most recent former chief Kealoha who resigned and is now under federal indictment and facing trial? Surely his replacement, a woman, wouldn't deceive the public, would she? Couldn't be, because their motto is "to protect and serve with aloha". I kid you not.

Read the declarations for more of the lies and deceptive statistics and claims about how the world will end with mass public violence if the ordinary law-abiding citizens of Hawaii are allowed to bear arms outside their homes, even though none of what they predict has happened in any other state where the law went from "no" or "may" issue to "shall" issue or "permitless":

HPD http://michellawyers.com/wp-content/...lard_157-2.pdf

KPD http://michellawyers.com/wp-content/...ades_157-3.pdf
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  #715  
Old 09-28-2018, 10:54 AM
speedrrracer speedrrracer is offline
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I have little doubt that there are few if any "citizen" open carry permits, but what the State will argue is that the police have simply "gotten it wrong" all these years, and from now on citizens will be considered along with guards for open carry permits.
So the state will argue that their law is facially neutral, but was applied in a discriminatory fashion?

Do they not know about equal protections in Hawaii, or do they just want to maximize their chances of losing?
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Old 09-28-2018, 1:06 PM
TruOil TruOil is offline
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So the state will argue that their law is facially neutral, but was applied in a discriminatory fashion?

Do they not know about equal protections in Hawaii, or do they just want to maximize their chances of losing?
Nah, just that the issuance is discretionary and that no citizen has to date shown sufficient "need" to open carry a handgun in public outside of those areas where it is permissible.
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Old 09-28-2018, 5:11 PM
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Nah, just that the issuance is discretionary and that no citizen has to date shown sufficient "need" to open carry a handgun in public outside of those areas where it is permissible.
But isn't a sufficient need argument fatal when we are speaking of a constitutional right?
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Old 09-28-2018, 8:10 PM
TruOil TruOil is offline
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But isn't a sufficient need argument fatal when we are speaking of a constitutional right?
Depends on what jurisdiction you are in and the level of scrutiny applied. If you are Judge O'Scanlain, strict scrutiny applies (as he did in this case and the original Peruta decision). But if you are Judge Stanley Thomas and the rest of the liberals on the Ninth Circus bench, "intermediate scrutiny" applies, whereby, under their extremely deferential standard that is little more than the lowest level of scrutiny, rational basis, the government has an "important interest" in "protecting the public," and therefore "reasonable restrictions" on the right to bear arms essentially trump the right.
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Old 09-28-2018, 8:21 PM
surfgeorge surfgeorge is offline
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Depends on what jurisdiction you are in and the level of scrutiny applied. If you are Judge O'Scanlain, strict scrutiny applies (as he did in this case and the original Peruta decision). But if you are Judge Stanley Thomas and the rest of the liberals on the Ninth Circus bench, "intermediate scrutiny" applies, whereby, under their extremely deferential standard that is little more than the lowest level of scrutiny, rational basis, the government has an "important interest" in "protecting the public," and therefore "reasonable restrictions" on the right to bear arms essentially trump the right.
And in Hawaii the "reasonable restrictions" are, de facto, that no one may bear arms in public.

The state actually argued that: Because of the inherent danger of firearms, in order to help assure "public safety", no one should be allowed to bear arms in any location where any member of the public may lawfully be. Thus applying the "sensitive locations" proviso of Heller I to any and all public spaces.

Case closed.
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Old 09-29-2018, 3:14 AM
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At least it got denied... once.
If it's denied then it's denied. The entire court votes on it. One judge cannot change that outcome.
Peruta was different. The county in that case didn't proceed with en banc, but Thomas went sua sponte and asked for en banc w/o the parties asking for it.

Not what's happening here.
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