-
If you enjoy the forum please consider supporting it by signing up for a NES Membership The benefits pay for the membership many times over.
Hightower Decision Released
- Thread starter Knuckle Dragger
- Start date
One of Alan Gura's gifts as a litigator is his ability to create a concise, easy-to-follow narrative. Pleadings have to rest on solid legal ground. They must use the law, precedent, and the Constitution to support whatever request they're making of the court. But at the same time, they have to tell a story, especially when a case or controversy involves one's civil rights.
I don't know the timeframe, but either one of the active judges will ask the other side to respond, or if this doesn't happen within a certain time limit, en banc is denied, and the cert petition clock starts again. If a response is requested, once that's in, the full court votes on whether to rehearse en banc.
Sent from my PG06100 using Tapatalk 2
Sent from my PG06100 using Tapatalk 2
OK, this time slower, in English.
Seriously, what kind of time frame are we talking here, days (I guess not, since this was the 19th), weeks, months, years? What is the big holdup in courts all the time? This is worse than waiting for an eyeglass appointment.
Seriously, what kind of time frame are we talking here, days (I guess not, since this was the 19th), weeks, months, years? What is the big holdup in courts all the time? This is worse than waiting for an eyeglass appointment.
When
the
judges
get
around
to
it.
The federal courts are hugely overloaded. There are a few reasons for this. The big ones being the federalization of the war on drugs and the huge delays on approving judicial appointments due to the politicization of the judiciary.
The courts just don't operate on internet time. I point out that Heller took a total SIX YEARS. My guess for a decision on whether to re-hear en banc is weeks to a few months, but I don't really know, since they're relatively rare.
This case is likely to get appealed all the way to Supreme Court. If it actually gets that far and is heard by the SCOTUS, expect it to take years.
OfficerObie59
NES Member
- Joined
- May 3, 2009
- Messages
- 5,419
- Likes
- 1,899
I'm inclined to agree a little. I always had some slight concern that Stacy Hightower's lack of pursuing her appeals and applications would be an easy way for the courts to kick the can down the road. Still, the issue is you're hard pressed to see someone in Boston who had an unrestricted permit get it revoked unless they were a police officer, as few others get a restricted License to being with.
With that said, Comm2A no doubt did the best they could. Finding plaintiffs in public interest litigation is not as easy of a task as it might seem.
OfficerObie59
NES Member
- Joined
- May 3, 2009
- Messages
- 5,419
- Likes
- 1,899
I was almost hoping there would be some cited incidents of how suitability has been used to quash exercise of the open carry they claim is perfectly legal.
I don't know enough about the intricacies of appellate litigation to know if that's even appropriate because they're new facts, but In Alan I Trust.
OfficerObie59
NES Member
- Joined
- May 3, 2009
- Messages
- 5,419
- Likes
- 1,899
All you ever needed to know about en banc review:
http://epstein.usc.edu/research/courses.LAPSGiles.pdf
http://epstein.usc.edu/research/courses.LAPSGiles.pdf
Well, that was fast. Petition for rehearing and for rehearing en banc denied today. I believe that starts the 90 day clock for a cert petition to SCOTUS. I'm guessing such a petition, if it's coming, will at least be after the pending decision in the 7th Circuit, if not on the 90th day.
Personally, I don't know if I want the SCOTUS hearing this one. Hightower isn't pristine enough I think and don't want to risk a bad precedent. Sure, we all know it's BS and that she would not have gotten an adequate permit if she re-applied, but she still should have applied.
- Joined
- May 17, 2008
- Messages
- 16,975
- Likes
- 2,820
No, this is not what she should have done. For instance, should she have reapplied, gotten denied, taken it to state court where the court issues it back, then the PD revokes it yet again, putting it on her to once again apply only to get denied before being able to go to court? Why isn't one revocation enough?
21.06759%.
In all seriousness, people whose full time job is federal appellate attorney generally won't make predictions on that because it's so hard. I, as a layperson who follows this stuff for fun, have even less of a chance. Firstly, Hightower, along with SAF/Comm2A and counsel, have to decide whether to pursue a cert petition. Then, if they file one, Massachusetts and Boston have to respond, and then it takes 4 justices to vote to hear the case.
A big factor in whether SCOTUS will hear a case is whether there's currently a disagreement between the circuit courts of appeals on the issue in question. There are similar cases with rulings pending in the 2nd circuit (Kachalsky in NY), and 7th Circuit (Moore/Shepard in IL). There are other cases right behind in the 3rd, 4th, and 9th. If we win any of these, SCOTUS will almost be forced to take one.
This.
Also, it was stated that if she applied she would receive a RESTRICTED permit, which of course would not allow her to carry. That is the issue that has not yet been addressed by the court. Should she have reapplied - NO, because she was denied the first time and then, in court, the defendent stated that if she had reapplied and answered all of the questions accurately that she would have been granted a RESTRICTED permit.
Could she have reapplied a accepted a restricted permit, well sure. But that's not what she applied for, it's not what any of us apply for and that is the real issue and this case was built, in part, to bring that to light.
All I'm saying is that it would make it a much tighter case if she reapplied and then appealed the restrictions. It would have shown that things don't work out for us even when we do jump through all the ridiculous hoops. If she hadn't falsely answered the question on the application, then no I don't think she should have reapplied.
- Joined
- May 17, 2008
- Messages
- 16,975
- Likes
- 2,820
Did she? All we have in front of us is that the answer may have been wrong, not that she intended to answer it wrong nor that she believed it to be wrong and certainly not that it was definitely wrong. Her own department cleared her when she left not thinking anything was left outstanding. It may very well be that the answer proves to be wrong, but by what process did Hightower have for seeing this determined by neutral third parties?
You cannot go to MA court to appeal a restriction you can only appeal a denial.
You can appeal a restriction if you take the CoP to Civil Court, but that doesn't accomplish anything outside of the individual.
So, that was 11 days. Then 90 days. That is a total of 100 days. What happens then? Either it gets heard or denied? What is a "cert petition" anyhow? Is that an appeal gets approved? We need laws in English, not latin. It's Greek to me!
Attorney Gura and his client have 90 day to submit a petition to the Supreme Court.
If that's what happens, the Supreme Court has as much time as they want to decide whether to take the case. They can make a decision based upon the cert petition and the court record or ask the parties for supplemental briefings as they did in Powell. If they grant cert it would likely be heard during the current term. SCOTUS could also grant cert, vacate the decision, and remand for further proceedings (i.e. GVR) without a hearing as they did in Loadhold, although this is unlikely.
Keep in mind that the Supreme Court grants cert (accepts) less than two percent of the cases that submit a petition. Also, remember that there are no fewer than eight carry cases currently making their way through the federal court system - all of which present the right-to-carry question unencumbered by all of the other noise that comes with the MA licensing scheme.
Last edited:
If the judge orders that Chief to remove the restriction, wouldn't you have case law on restrictions? That would help a lot of people?
No, because each case in Civil Court is based only on the individual, the decision would have no direct impact on anyone else. It would not create case law. The only thing that might help in this regard would be that the Chief would possibly not place a restriction on someone with strong similarities to a person that has won in court in his city. Or, if enough folks went to court then the court/law dept costs would become burdonsome on the city, and perhaps pressure would be placed on the Chief to change his practices. Money always speaks louder than words here.
Even if it's based on one individual in a civil suit and the court (judge) gives his/her opinion you still get case law. I understand that this doesn't mean that the next person will automatically enjoy the outcome (under similar circumstances as the original plaintiff), but if the court has given it's opinion on a legal matter it "usually" sets the precedent for future cases.
http://en.wikipedia.org/wiki/Precedent
OfficerObie59
NES Member
- Joined
- May 3, 2009
- Messages
- 5,419
- Likes
- 1,899
The problem with a district court appeal on LTC restrictions is that it's not a reported case. So how are you going to argue a case to a judge with little to no record of the proceedings, notwithstanding that district court decisions have about as much precedent as a motor vehicle hearing?
Remember, in a common law jurisdiction there are two types of precedent: mandatory and persuasive. Decisions from courts at the same level have persuasive authority; cases decided by appeals courts on higher tiers AND of the same sovereign, or another sovereign if the case involves that sovereigns' laws, are mandatory authority.
Thus a district court judge has no mandatory duty to apply precedent from the judge across the hall, notwithstanding any adherence to stare decisis. Frankly, most district court judges are far to busy to start battling over decisions from other district courts.
Last edited:
If there is a civil suit, then there is a record and transcript. I agree that it is hard to keep track of them, but that's where a good lawyer comes in since I don't expect every judge to know of every decision that has been made in court (even at the same level).
I don't think this can be compared to traffic court.
I don't think this can be compared to traffic court.
- Joined
- Apr 24, 2005
- Messages
- 47,515
- Likes
- 33,529
This statement makes no sense - since you say one go to MA court to appeal a restriction but you can appeal in civil court - which logically would mean that civil court is not a MA court.
The appeal is to MA District Court. The law states that a "denial" may be appealed, but is silent as to whether a "restriction" is a denial. I know it is possible to appeal, as I have read a decision on one such appeal. Although the appellant lost, the court wrote a lengthy opinion as to why it favors a dedicated LE professional over a plebeian. If an appeal were "not allowed", the decision would have simply been to deny standing.
The problem is that the first thing the LE is going to say is "Your honor, I don't understand why were are here since I issued an LTC". The judge will then ask the appellant "is that true" and, if the judge is predisposed to deny will respond with "dismissed, next case please" why you are standing there going "but, but...." and told to move on.
Similar threads
