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Oldest post-Heller 2A case in 9th loses


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#1 Charles Nichols

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Posted 27 April 2018 - 08:48 PM

Today, 156 days after the petition for an en banc hearing was filed, the petition was denied in James Rothery, et al v. County of Sacramento, et al.

 

Docket Text:
Filed order (M. MARGARET MCKEOWN, PAUL J. WATFORD and MICHELLE T. FRIEDLAND) The panel has voted to deny the petition for panel rehearing. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R. App. P. 35. Appellants’ petition for panel rehearing and petition for rehearing en banc (Docket Entry No. [99]) are denied. No further filings will be entertained in this closed case. [10853761] (GB)

 

This Appeal was filed on 08/25/2009.  This case was first filed on 09/02/2008 in the district court.

 

After the Peruta en banc decision was handed down the plaintiff's lawyer claimed that his was an Open Carry case as well and yet nowhere in his 800+ paragraph complaint or in his filings in the district court did he seek to openly carry any firearm, anywhere.
 
The same is true of the NRA lawsuit filed on the heels of the Peruta en banc decision, Flanagan v. Harris (now Becerra).
 
Whether or not the denial of the en banc petition today means that a decision in Young v. Hawaii or Nichols v. Brown is on the horizon is anybody's guess.
 
The lawyer for Rothery is the same lawyer who represented the plaintiffs in the 2002 Silveira case (cert denied) in which the recently deceased 9th circuit court of appeals Judge Reinhardt held that the Second Amendment was not an individual right but was, instead, a collective right limited to militias.  That decision created a SCOTUS Rule 10 split with the 5th Circuit Court of Appeals (United States v. Emerson 2001, cert denied) which was followed by another circuit split in the case which would come to be known as District of Columbia v. Heller.
 
I do not know if there will be a cert petition filed.  If there is then I will post a link to the SCOTUS docket at my webpage for this case.  


#2 WitchDoctor

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Posted 27 April 2018 - 10:52 PM

Thank you sir.


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#3 chicagoresident

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Posted 28 April 2018 - 07:22 PM

Donated, keep fighting

#4 Charles Nichols

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Posted 28 April 2018 - 07:50 PM

Donated, keep fighting

Thank you. 

 

It occurred to me after my original post that my lawsuit, Nichols v. Brown, is now the oldest carry case in the 9th circuit.  Given the glacial pace at which the 9th circuit proceeds, I would not be surprised if mine were the oldest carry case nationally which is still standing.



#5 cybermgk

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Posted 30 April 2018 - 09:17 AM

Now explain it in non legalise?


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#6 Talonap

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Posted 30 April 2018 - 11:22 AM

Now explain it in non legalise?

 

Me too please ... :flowers:



#7 Charles Nichols

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Posted 01 May 2018 - 01:33 AM

Now explain it in non legalise?

The short version is that the only thing that the lawyer for the Rothery plaintiffs can do now is to file a cert petition.



#8 Euler

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Posted 01 May 2018 - 02:39 AM

Now explain it in non legalise?

 
Me too please ... :flowers:


From my reading of the 9th Circuit Court summary decision:
  • Rothery et al. sued Sacramento County in Federal District Court alleging that Sacramento had violated their constitutional rights by denying them concealed carry licenses. (County sheriffs issue CC licenses in California.)
  • Federal District Court dismissed the suit
  • Rothery et al. appealed to Federal Circuit court, alleging that the District Court's dismissal was improper on several grounds.
  • The Circuit Court affirmed that the District Court's dismissal was not improper.
Rothery et al. could next appeal to the US Supreme Court.

IANAL, but if the Supreme Court were to overturn the dismissal, it would only mean that the suit would proceed back in District Court, which may not even mean anything for anyone in Sacramento County beyond the named plaintiffs. So it seems pretty nothingburger to me, other than the fact that it was the oldest outstanding 2A case in California.

Edited by Euler, 01 May 2018 - 02:45 AM.


#9 Charles Nichols

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Posted 01 May 2018 - 03:47 AM

 

 

Now explain it in non legalise?

 
Me too please ... :flowers:

 



IANAL, but if the Supreme Court were to overturn the dismissal, it would only mean that the suit would proceed back in District Court, which may not even mean anything for anyone in Sacramento County beyond the named plaintiffs. 

 

Rothery et al., sued the former sheriff for the denial of their concealed carry permits.  Since 2010, the current sheriff's policy has been about as "shall issue" as is possible under California law.  Somewhere, in one of the filings, someone raised the question of mootness because of the change in policy.    http://www.sacbee.co...e121987214.html



#10 Charles Nichols

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Posted 07 May 2018 - 11:30 AM

Today, the Mandate issued.  To add insult to injury, "Costs are taxed against the appellant in the amount of $69.00."

 

It could have been a lot worse.  On appeal, there is always the possibility of the losing side having to pay attorney fees and costs from both the district court proceedings as well as the appeal.

 

Attached File  101 - Rothery v. Sacramento - Mandate.pdf   197.59KB   34 downloads






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