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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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  #2121  
Old 06-16-2021, 6:11 PM
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Originally Posted by gobler View Post
One could use the argument the Judge Benitez made in reference to tazers. If SCOTUS found 200,000 is "in common use" find out how many. 50 bmgs are in the wild..
Or how many instant sbrs and sbss would be “in common use” if the ATF ‘s proposed rule making goes through in its current form.
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  #2122  
Old 06-16-2021, 6:50 PM
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Default Miller v. Bonta, CA9 - "assault weapons" - 6-10-21 Appeal Filed

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Originally Posted by swift View Post
Or how many instant sbrs and sbss would be “in common use” if the ATF ‘s proposed rule making goes through in its current form.

According to ATF, the proposed rule would affect 8 manufacturers of braces, 3,881 manufacturers of firearms, 13,210 dealers, and 1.4 million firearm owners who have firearms with braces, with an estimate of between 3 million and 7 million braces in use.
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  #2123  
Old 06-16-2021, 7:00 PM
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Originally Posted by ShadowGuy View Post
Once again, they are talking in circles. As the plaintiffs explained, what CA defines as an AW is not an "exceptionally lethal weapon of war". And they continue to assert that without any evidence.
The liberals in our state and federal governments do not believe they are required to provide any evidence that their policies are in any way connected to actual outcomes. And, they believe that simply by continuing to use the words “exceptionally lethal weapon of war” over and over despite the mass of factual evidence to the contrary, that at some point they will successfully manufacture a sufficient cognitive bias in enough people to make it become a cultural ‘truth’.
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  #2124  
Old 06-16-2021, 8:28 PM
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Yeah right. Since when has it mattered what their “rules” say?
That'd be the difference between a legal process standpoint and a hyper-partisan activist standpoint and highlights what Trump was trying to correct when he started filling vacancies in the 9th.
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  #2125  
Old 06-17-2021, 7:35 AM
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Originally Posted by Librarian View Post
.50 BMG seems not to have been challenged.

The referenced code distinguishes between 'assault weapon' and '.50 BMG rifle', so the answer to your question seems to be NO.
Probably for the best, I think the two statutes are different enough that they should be challenged separately. Although I'm honestly not sure there will ever be a .50 BMG ban challenge, directly. It's just not really a lowest hanging fruit. Although there's a chance that a different case in the future might impact it indirectly.
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  #2126  
Old 06-17-2021, 7:54 AM
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Originally Posted by CandG View Post
Probably for the best, I think the two statutes are different enough that they should be challenged separately. Although I'm honestly not sure there will ever be a .50 BMG ban challenge, directly. It's just not really a lowest hanging fruit. Although there's a chance that a different case in the future might impact it indirectly.
IIRC I’ve seen rulings by the court that throw out an entire section of the penal code because a major portion of it is ruled unconstitutional. If that were to happen here, the .50 cal ban could easily be wiped out as well. IANAL, but it’s my understanding that this is why several laws are passed with “severability clauses” which are designed to keep the remainder of law intact in the event some portion of the law is invalidated. I don’t think such a clause applies to PC 30600.
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  #2127  
Old 06-17-2021, 8:13 AM
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Originally Posted by Bolt_Action View Post
IIRC I’ve seen rulings by the court that throw out an entire section of the penal code because a major portion of it is ruled unconstitutional. If that were to happen here, the .50 cal ban could easily be wiped out as well. IANAL, but it’s my understanding that this is why several laws are passed with “severability clauses” which are designed to keep the remainder of law intact in the event some portion of the law is invalidated. I don’t think such a clause applies to PC 30600.
That's the way I understand it, as well.
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  #2128  
Old 06-17-2021, 8:53 AM
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Originally Posted by ΜΟΛΩΝ ΛΑΒΕ View Post
According to ATF, the proposed rule would affect 8 manufacturers of braces, 3,881 manufacturers of firearms, 13,210 dealers, and 1.4 million firearm owners who have firearms with braces, with an estimate of between 3 million and 7 million braces in use.
According to SB Tactical, they alone have sold more then 30 million braces. Their estimates are 40+ million braces have been sold if you combine all companies.
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  #2129  
Old 06-17-2021, 9:29 AM
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Originally Posted by gobler View Post
According to SB Tactical, they alone have sold more then 30 million braces. Their estimates are 40+ million braces have been sold if you combine all companies.
That's a lot of braces. Assume that is a fraction of the total MSR's in use
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  #2130  
Old 06-17-2021, 10:51 AM
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Originally Posted by CandG View Post
Since the existing stay is only good for 30 days, that justifies an "emergency", (at least from their viewpoint). A standard motion for a stay could take months.

Granted, I agree that it absolutely is not an emergency in the traditional sense of the word, but from a legal process standpoint, it qualifies as one.
Mmmm... Months? Not according to Chapter 6 of the CA9 General Orders.

The Motions Panel is selected and meets a minimum of 3 days (or however much time is adequate) every month to dispose of those motions for that month.

Even if the Panel decides it doesn't have enough time to decide the stay on the merits, it can still grant (as the State would most certainly request, and did so in their emergency stay request) an administrative stay pending the resolution of their stay request (which only needs two judges), which would put the judgement on hold even past 7/4 if necessary.

Even further, the state can request (and they did in their emergency motion) that an administrative/temporary stay be given on the off chance the motions panel doesn't rule in their favor, so that they can appeal the motions panel en banc without there being any sale/manufacturing/transfer of assault weapons.

And keep in mind the further we proceed up this ladder, the less likely the state is going to be denied. The fact that they filed an emergency motion is ridiculous, and the FPC is right (as many of us have said before they filed) that June 18th is an arbitrary date for relief. The state is operating on the highly unlikely belief that the Motions Panel might deny their stay request AND deny an administrative/temporary stay while seeking en banc appeal request.

Especially considering the timing: Benitez issued his order on 6/4, and 30 days means we're looking at 7/4 until his own temporary stay ends. The motions panel likely isn't going to meet at the beginning of the month; likely they're going to meet during the second or third week, based off of CA9 GO 6.2.d. as the staff attorneys need a "sufficient period of time to prepare an adequate calendar".

Going back to Rhode v Becerra... while the administrative stay was granted next day (by 2 judges, on 4/24), the motions panel granted the stay pending appeal on 5/14. For those reasons it's likely their regular motion would be heard in a timely manner.

I mean, again, I'm not a lawyer, and I certainly don't know all the minutiae of the court system at the appellate level, but based off of the rules posted, how it happened last time, and the lack of convincing argument made by Bonta (They don't explain the 6/18 date at al!), I see no reason for why the motion couldn't have just been a regular one, especially since they were afforded time to file, and especially since it's likely the Motions Panel would grant them every courtesy.

That's why I think the need for an emergency motion is bunk, and basically every motion can be filed as an emergency motion by Bonta's logic. It makes me ask why Bonta pushed for the emergency motion. What does Bonta know that we don't.
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  #2131  
Old 06-17-2021, 10:54 AM
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Originally Posted by BeAuMaN View Post
What does Bonta know that we don't.
Who is on the panel.
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  #2132  
Old 06-17-2021, 10:58 AM
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Who is on the panel.
It was made secret by the 9th circuit.
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  #2133  
Old 06-17-2021, 11:17 AM
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It makes me ask why Bonta pushed for the emergency motion. What does Bonta know that we don't.
IMO you are reading into this more than you have to. I think it's purely theater, to show that CA is doing something, anything, to save the children. Newsom needed to look tough, Bonta is his lackey.

I don't think it is of any legal relevance whatsoever. It costs them nothing to file, will not have any negative repercussions, and Newsom can say CA is trying hard to save lives.

Disclaimer: IANAL.
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  #2134  
Old 06-17-2021, 11:26 AM
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Originally Posted by curtisfong View Post
IMO you are reading into this more than you have to. I think it's purely theater, to show that CA is doing something, anything, to save the children. Newsom needed to look tough, Bonta is his lackey.

I don't think it is of any legal relevance whatsoever. It costs them nothing to file, will not have any negative repercussions, and Newsom can say CA is trying hard to save lives.

Disclaimer: IANAL.
I could totally be reading too much into it, but my sense is that the court gets annoyed when you file unnecessary motions. I could be wrong though. I imagine some litigators are given more leeway than others (like the state).
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  #2135  
Old 06-17-2021, 11:50 AM
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Originally Posted by BeAuMaN View Post
I imagine some litigators are given more leeway than others (like the state).
The court already has a proven track record of autonomously fixing defects in the State's activities/filings/strategy when it comes to 2A cases, without anyone having to request it.

Given the right court makeup, the State seems to have nearly infinite leeway.
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  #2136  
Old 06-17-2021, 12:43 PM
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I could totally be reading too much into it, but my sense is that the court gets annoyed when you file unnecessary motions. I could be wrong though. I imagine some litigators are given more leeway than others (like the state).
An annoyed court will still always decide in your favor if you have the correct ideology.

This doesn't always mean political ideology either. I once had an appeal case where the cops invaded my client's home without a warrant, then tried to cover it up by saying welfare check because my client, standing in the kitchen cooking, was ignoring them so they (literally) broke in through the sliding glass door to verify that he was ok. And then proceeded to drag him physically outside where they questioned him about a misdemeanor DUI without reading him his Rights.

Case law is clear, misdemeanors don't fall under the felony warrant exception from the 4A and especially not when the basis for the warrantless entry is pretextual. Court didn't care. Why? Because the ideology is to put/keep people in jail and the law be damned.

Yeah, that really happened. It also makes you understand why 2A cases are so hard to win.
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  #2137  
Old 06-17-2021, 4:11 PM
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No movement today (as of right now), and tomorrow is a new federal holiday.
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  #2138  
Old 06-17-2021, 6:19 PM
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So I’m confused. Is there a court holiday tomorrow or not? If so, does the deadline get extended or was there no action taken?
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  #2139  
Old 06-17-2021, 6:43 PM
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So I’m confused. Is there a court holiday tomorrow or not? If so, does the deadline get extended or was there no action taken?
I had the same misunderstanding .. I think the only deadline in July 4.

I guess California requested action by June 18th.
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  #2140  
Old 06-17-2021, 6:44 PM
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If Juneteenth means that the CA DOJ can't get their emergency whatever and we get an AW repeal...I will celebrate Juneteenth.
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Old 06-17-2021, 7:29 PM
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So I’m confused. Is there a court holiday tomorrow or not? If so, does the deadline get extended or was there no action taken?
Depends on how the 9th conducts business. The Emergency Stay requires a panel meet and make a ruling.

If the panel doesn't meet then there can be no ruling, so one of the theories out there is that the 18th would be the last time the panel can meet (according to their published schedule) before July 4th.
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Old 06-17-2021, 7:42 PM
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Well here’s to hoping they don’t meet, although I don’t think that’s likely
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  #2143  
Old 06-17-2021, 8:12 PM
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If Juneteenth means that the CA DOJ can't get their emergency whatever and we get an AW repeal...I will celebrate Juneteenth.
Lol
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  #2144  
Old 06-17-2021, 8:29 PM
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I had the same misunderstanding .. I think the only deadline in July 4.

I guess California requested action by June 18th.
Yep, The courts are not going to appear to be bullied by California who put up a horrendous defense in court.

Even the Ninth wants to be respected and not pushed obviously into politics. Think John Robert’s style.
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Old 06-17-2021, 8:38 PM
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Yep, The courts are not going to appear to be bullied by California who put up a horrendous defense in court.

Even the Ninth wants to be respected and not pushed obviously into politics. Think John Robert’s style.
I'm very skeptical of this claim. Sidney Thomas et al have shown they're more than happy doing exactly what the DoJ wants them to do.
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Old 06-17-2021, 8:52 PM
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On Friday, June 18, 2021, the United States District Court, in Los Angeles, Santa Ana and Riverside, will be closed in recognition of Juneteenth National Independence Day.

Normal service will resume on Monday, June 21, 2021.
http://www.cacd.uscourts.gov/news/ju...dence-day-2021
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Old 06-17-2021, 8:59 PM
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Looks like the 21st will be the new 18th.
https://www.ca9.uscourts.gov/content...2021%2C%202021.

Last edited by Bruce3; 06-17-2021 at 9:11 PM..
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  #2148  
Old 06-17-2021, 9:10 PM
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Looked like the 21st will be the new 18th.
https://www.ca9.uscourts.gov/content...2021%2C%202021.
Shucks
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Old 06-17-2021, 9:40 PM
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That doesn't say San Francisco, which is the specific court handling the case. Here's hoping at least.
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Old 06-17-2021, 9:43 PM
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Originally Posted by MountainLion View Post
"Gewehr" mean rifle. Weapon would be "Waffe".


Correct. The literal translation of "Sturmgewehr" would be "assault rifle". As I said above.
No, Mountainlion. "Sturm" does not literally translate as "assault" and "gewehr" is "gun". Gewehr could be a rifle, or a pistol. It's a general term. The context of our conversation would be rifle, so I'll buy off on that correction on context only.

"Waffe" does translate as "weapon", but only generally. Luftwaffe is literal German for "Air Weapon", not "air rifle". Colloquially, luftwaffe is German for air force. It is a general term...anything from the planes to the trucks to the runways, if it's involved with the German Air Force, it's part of the Luftwaffe.

And before anyone gets too wrapped around the axle on it, I was attacking the fact that he said it was a literal translation of the word. It is not. "SturmGewehr" was a moniker given by Hitler to one firearm which actually had another name. Assault Weapon was an English descriptor given to a basic class of firearm, but which really should be Assault Rifle for accuracy. Even if I don't like the term "assault"
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Old 06-18-2021, 6:34 AM
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I'm very skeptical of this claim. Sidney Thomas et al have shown they're more than happy doing exactly what the DoJ wants them to do.
The States demand of June 18th has come and gone with no action.
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Old 06-18-2021, 7:54 AM
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The States demand of June 18th has come and gone with no action.
Don't worry, I'm sure someone in the 9th knows how to backdate an entry into the docket.
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Old 06-18-2021, 10:05 AM
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Originally Posted by Bruce3 View Post
Looks like the 21st will be the new 18th.
https://www.ca9.uscourts.gov/content...2021%2C%202021.
This isn't a filing deadline, though.

Today's "deadline" was an arbitrary date that DOJ is trying to bully the court into issuing a stay by.
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AW Reg. will likely be reopened summer '21 to those who weren't able to register by 7/18. We don't know what that means for firearms made compliant when reg. failed or if they can or must be converted to AW configuration before registering. There's a moratorium on prosecutions for possession of AWs which were eligible for registration, but AWs acquired after 2016 can still be prosecuted!
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  #2154  
Old 06-18-2021, 1:35 PM
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Looks like the 21st will be the new 18th.
https://www.ca9.uscourts.gov/content...2021%2C%202021.
Mmmmm... Not debating June 18th is when Juneteenth is being observed for CA9, but from a strict reading I think technically this wouldn't apply to CA DoJ's requested deadline, but more the deadlines outlined in FRAP (imposed upon parties filing stuff with the CA9). I'll be happy though if the Motions Panel doesn't reply today.
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Old 06-18-2021, 4:21 PM
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Is there a time of day that no further work is done in the courts? It's now past 5pm. Haven't seen anything yet..
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Old 06-18-2021, 4:32 PM
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Nope! Judges are on call. See the Rhode v Becerra administrative stay.
When the day ends we'll know if they decided to do anything or not.

I mean, for a 3-judge stay pending appeal you'll probably see it between 9-5 or whatever. But a 2-judge administrative/temporary stay or something to prevent "irreparable harm" while they consider the merits of the stay request you could see at any hour of the day.

Last edited by BeAuMaN; 06-18-2021 at 4:42 PM..
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Old 06-18-2021, 4:57 PM
splithoof splithoof is offline
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Originally Posted by BeAuMaN View Post
Nope! Judges are on call. See the Rhode v Becerra administrative stay.
When the day ends we'll know if they decided to do anything or not.

I mean, for a 3-judge stay pending appeal you'll probably see it between 9-5 or whatever. But a 2-judge administrative/temporary stay or something to prevent "irreparable harm" while they consider the merits of the stay request you could see at any hour of the day.
You are correct that judges are on call. Some years back, during the states ramp-up for the first execution of a convicted murderer in decades (R.A. Harris?), an additional stay (late at night) was placed by a judge living in Woodland Hills, from his home. Made me sick to think that liberal sniveling puke lived where I grew up.
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Old 06-18-2021, 5:19 PM
dawgcasa dawgcasa is offline
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Can't decide if this was just creative writing, or if AG lies to themselves so much they actually believe this is what's on the line. Either way, it must hurt to be so far left.
What’s interesting is the AG’s use of the word ‘theoretical’ when describing the use of AR-15s for self defense … when there are mountains of empirical data of AR-15s being used by millions of people, and among them numerous documented cases of AR-15s being used for home defense, or used in the defense of others (remember that church shooting a few years back where a guy got his AR out of his truck and shot the murderer?). That’s not ‘theoretical’. It’s empiricism. But we know the long string of CA’s AG’s aren’t interested in facts. They just keep promoting a narrative, hoping that liberal judges on the 9th will echo them, then ‘defer’ to the legislature.
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Old 06-18-2021, 5:59 PM
jcwatchdog jcwatchdog is offline
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I’m wondering if Bonta and Gavin flaming a sitting judge in a press conference pissed off the judges in the 9th. Even though they may differ in regards to some issues, I’m sure most judges don’t appreciate a fellow judge being lambasted in the media by a governor and AG.
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Old 06-18-2021, 7:41 PM
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curtisfong curtisfong is offline
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I’m wondering if Bonta and Gavin flaming a sitting judge in a press conference pissed off the judges in the 9th. Even though they may differ in regards to some issues, I’m sure most judges don’t appreciate a fellow judge being lambasted in the media by a governor and AG.
I'm betting Benitez is a pariah that is hated by Sidney Thomas' old boys' network. I doubt they respect him. They, like Newsom, lack the intellectual honesty to seriously consider anything he writes.

Bonta has an excuse, at least. Crapping all over his subjects' rights is, after all, his job.
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Last edited by curtisfong; 06-18-2021 at 7:43 PM..
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