Hightower Decision Released

[Revelationechc]

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.

Sorry, it should say "MA District Court" and I should have been clearer with regard to Civil Court vs District Court. Rob is 100% correct and better at explaining it than I. Thanks for the follow up Rob.

 

[newportri]

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.

Has anyone argued (in Court) that a restriction is a "partial" denial? After all, if you apply to get a full time LTC (most would like this), but you get a Target Range Only LTC, you were denied to carry in probably 99% of the state.

 

[KH56010]

Has anyone argued (in Court) that a restriction is a "partial" denial? After all, if you apply to get a full time LTC (most would like this), but you get a Target Range Only LTC, you were denied to carry in probably 99% of the state.

I think it's because the MGL's have it written out that there is an appeals process for a full denial or suspension but make it clear that restrictions are up to the CoP and are completely legal. Kind of like when you get pulled over and are given a warning. You may not have rolled that stop sign, but it doesn't go against your insurance or count toward your 3 tickets a year and loss of license. These things are the what bad cops call the "gifts that keep on giving" a CoP who doesn't like you can toss on restrictions without an ability for appeal and screw you for 6 years, if you get in an accident and the officer on scene thinks your being a dink but can't prove you violated any traffic laws he can give you a warning which immediately puts you at fault with the insurance company with no appeals process on the warning.

 

[Rob Boudrie]

if you get in an accident and the officer on scene thinks your being a dink but can't prove you violated any traffic laws he can give you a warning which immediately puts you at fault with the insurance company with no appeals process on the warning.

No appeal on the warning but, in MA, there is an appeal process for a policy holder who wishes to contest the insurance company's finding of fault. Win that, and it's as if the accident never happened from a rate setting perspective.

 

[Coyote33]

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?

This is where GOAL and COMM2A need to step in and step up their game.

... 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.

Then ask the appellant "is that true" and the answer should be "I did not receive the license for which I applied.".

 

[M1911]

Then ask the appellant "is that true" and the answer should be "I did not receive the license for which I applied.".

And the judge will respond that you applied for an LTC and you received an LTC. Case dismissed.

 

[newportri]

Then ask the appellant "is that true" and the answer should be "I did not receive the license for which I applied.".

The only options you can choose from are:
FID (restricted)
FID
Class B LTC
Class A LTC
Machine Gun license
Class A gun club license.

There is no option to pick a restricted an un-restricted LTC.

 

[Rob Boudrie]

I only have a small sample of LTC appeal decisions I have actually read (not counting Hightower). Both were denials.

What was interesting is that the petition filed by a respected attorney for his client resulted in a lengthy written court decision with lengthy reasoning by the court. (Short form: The court has to decide if it wants to trust a professional police chief or a scumbag citizen, and it chooses the former). The pro-se filing resulted in a single line decision "petition is denied".

 

[Revelationechc]

Rob, has any court ever asked an IA the reason(s) for they applied a restriction or what the restriction means? Any question of the discretion at all?

In reality, couldn't an IA just make up a restriction that says -
-No Gun Use Whatsoever
-May Not Purchase Ammo
-Must Wear Thong While At Range

Then a judge asks, did you receive a class a LTC? You answer yes, but...
oooh Case Dismissed

With no boundaries on discretion and no definitions of restrictions there is no specific law, just guidelines that are quite squiggly.

 

[jar]

This is where GOAL and COMM2A need to step in and step up their game.

There will be no real relief achieved in the MA state courts. As Rob said, it's been tried and failed. The federal courts are our only hope, and that's what Hightower is about. It's almost guaranteed that a right to carry case will be heard by the Supreme Court eventually. It may be Hightower, or it may be one of the cases pending in another circuit. If it's Hightower, that will be the final decision. If it's another case and we win, if Hightower is still ongoing, that will solve things in MA, otherwise a new case will happen.

There is no additional court action regarding right to carry that's worthwhile at this point. It's valuable for GOAL to keep up the pressure on the legislature, long shot that it is, because as the court cases move along, eventually the legislature will see the writing on the wall. Concealed carry almost passed the Illinois legislature this past session because they know it's coming one way or the other eventually.

You sure seem to have a lot of suggestions for what other people / organizations should do that doesn't appear to be backed by any understanding of the issues involved.

 

[newportri]

There will be no real relief achieved in the MA state courts.

Hightower was not in MA state court, but in the US Court of Appeals for the First District.

 

[jar]

Hightower was not in MA state court, but in the US Court of Appeals for the First District.

Did you miss where I said "The federal courts are our only hope, and that's what Hightower is about." two sentences later?

 

[OfficerObie59]

Audio of Gura's oral argument today before the 9th Circuit (en banc?) in a similar case on discretionary licensing in California, Richards v. Prieto (formerly Sykes v. McGinness):

http://www.thegunmag.com/audio-safs-alan-gura-makes-argument-today-in-richards-v-prieto/

 

[Knuckle Dragger]

Thanks for posting. There were actually three right-to-carry cases heard yesterday by this 9th Circuit panel. I've linked to audio for all three:

Richard v. Prieto
Peruta v. County of San Diego
Baker v. Kealoha

I've also update the "Right to Carry Leaderboard"

 

[OfficerObie59]

Thanks for posting. There were actually three right-to-carry cases heard yesterday by this 9th Circuit panel. I've linked to audio for all three:

Richard v. Prieto
Peruta v. County of San Diego
Baker v. Kealoha

I've also update the "Right to Carry Leaderboard"

Thanks, Brent.

 

[Revelationechc]

Can the law guys give an update as to what this all meant? I listened, seemed logical to me. Then we get a loss. Not sure how to take all this. When you have a few minutes can throw together a post that outlines the good, the bad and the ugly? Thanks for the interpretation in advance.

 

[Nitro]

I've also update the "Right to Carry Leaderboard"

Well thats depressing...

 

[Garys]

Well thats depressing...

Keep in mind that a win at the District Court level, or even the Circuit Court level is pretty rare. Don't give up hope because there are always new cases coming along and eventually SCOTUS will take one up and we might win.

 

[OfficerObie59]

I didn't realize Paul Clement was the attorney on Peruta. Don't get me wrong--Gura is one of the best appellate litigators in the business, but Clement is THE best. If he can't pul it off, no one can.

 

[Knuckle Dragger]

Can the law guys give an update as to what this all meant? I listened, seemed logical to me. Then we get a loss. Not sure how to take all this. When you have a few minutes can throw together a post that outlines the good, the bad and the ugly? Thanks for the interpretation in advance.

Netting this out is impossible. Most people, including myself, tend to hear what they want to hear in arguments. And even if someone could listen objectively, as an uninterested party, it still would be impossible to figure out where the judges' heads are at.

My summary is this: the panel heard arguments in three right-to-carry cases that each presented slightly different issues. They were involved, interested, and asked very good questions of all six attorneys, and didn't appear hostile to either side. They'll issue three coordinated opinions that will be binding in nine western states (plus Guam, etc.) and at least one or two of the opinions will be appealed to SCOTUS and may even be accepted. (or we could have en banc re-hearings as well) The decisions in these cases will not completely satisfy the prevailing parties. There's a reason this is called the ninth 'circus' and that they are almost routinely overturned by SCOTUS. (I think last term the 9th was overturned 9-0 by SCOTUS three in one week).

They did what they're supposed to do in this process, they're helping to move this line of cases forward so that key RTC issues will be developed and eventually the bounds of the Second Amendment beyond the home will be defined. Now we wait and see........

 

[jar]

I didn't realize Paul Clement was the attorney on Peruta. Don't get me wrong--Gura is one of the best appellate litigators in the business, but Clement is THE best. If he can't pul it off, no one can.

Clement wasn't on Peruta from the beginning though. Peruta's original counsel basically ripped off Gura's briefs from Richards (captioned Sykes v McGinness at that point) and filed a copycat case. NRA and one of the CA groups came in later to try and salvage it. Clement was brought in for the appeal.

 

[Friday]

Looks like Plaintiffs Moore & Shepard prevailed in the 7th circuit appeal. I couldn't find the thread for it.

http://www.ca7.uscourts.gov/tmp/NY0NZFPQ.pdf

 

[jar]

Damn, Friday, you beat me by mere seconds. This is HUGE. Posner is one of the biggest names at the CA level.

Posner argued with Scalia over Heller, but in this opinion accepts that the history of the 2A was settled by Heller. He goes on to say that Heller and McDonald mean what they say as far as the 2A applying most acutely in the home, but not solely in the home. Illinois complete ban on public carry will be declared unconstitutional and permanently enjoined. The decision is stayed for 180 days to give the IL legislature a chance to craft a permit scheme. I'm sure there will be more litigation to come on that, but this is a huge victory.

 

[soam]

LOL:

Remarkably, Illinois is the only state that maintains
a flat ban on carrying ready-to-use guns outside
the home, though many states used to ban
carrying concealed guns outside the home, Bishop,
supra, at 910; David B. Kopel, “The Second Amendment
in the Nineteenth Century,” 1998 BYU L. Rev. 1359,
1432–33 (1998)—a more limited prohibition than Illinois’s, however. Not even Massachusetts has so flat a ban
as Illinois, though the District of Columbia does, see D.C.
Code §§ 22-4504 to -4504.02, and a few states did
during the nineteenth century, Kachalsky v. County
of Westchester, Nos. 11-3642, -3962, 2012 WL 5907502, at
*6 (2d Cir. Nov. 27, 2012)—but no longer.

Nice little jab there.

 

[30Mauser]

Damn, Friday, you beat me by mere seconds. This is HUGE. Posner is one of the biggest names at the CA level.

Posner argued with Scalia over Heller, but in this opinion accepts that the history of the 2A was settled by Heller. He goes on to say that Heller and McDonald mean what they say as far as the 2A applying most acutely in the home, but not solely in the home. Illinois complete ban on public carry will be declared unconstitutional and permanently enjoined. The decision is stayed for 180 days to give the IL legislature a chance to craft a permit scheme. I'm sure there will be more litigation to come on that, but this is a huge victory.

Just finished reading the whole thing... this is HUGE!

 

[OfficerObie59]

Clement wasn't on Peruta from the beginning though. Peruta's original counsel basically ripped off Gura's briefs from Richards (captioned Sykes v McGinness at that point) and filed a copycat case. NRA and one of the CA groups came in later to try and salvage it. Clement was brought in for the appeal.

Got it.

 

[cekim]

Got it.

Bad defendants often make good law, but bad lawyers never do... [sad2]

 

[Coyote33]

Damn, Friday, you beat me by mere seconds. This is HUGE. ...

Just finished reading the whole thing... this is HUGE!

Sounds HUGE. What ever came of it?

 

[GunGrey]

This is mass


So probably nothing

 

[jar]

Sounds HUGE. What ever came of it?

Illinois has a few weeks left to pass a carry law. If they don't, either they appeal to the Supreme Court, or every legal gun owner can carry without a permit. Just like in the other thread where you asked the same question.

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