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Teixeira v. Alameda (CA9)


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#1 skinnyb82

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Posted 16 May 2016 - 12:05 PM

This morning CA9 published an opinion (authored by Judge O'Scannlain, joined by Judge Bea) reversing the district court’s holding that Alameda's ordinance banning FFLs within 500 ft of a residential area to be unconstitutional and remanded it back down to the district court. Don't have time for a full write-up but will (try) to post opinion here.

Wrecks the entire scheme they've got planned to ban home-based FFLs as if FFLs are protected by the 2A then CA is gonna have a wicked time trying to regulate the crap outta them.

http://cloud.tapatal...-2016-05-16.pdf


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#2 Hipshot Percussion

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Posted 16 May 2016 - 12:38 PM

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#3 ming

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Posted 16 May 2016 - 01:16 PM

BELLEVUE, Wash., May 16, 2016 /PRNewswire-USNewswire/ — A three-judge panel for the U.S. Ninth Circuit Court of Appeals has issued a 2-1 ruling that “the right to purchase and sell firearms is part and parcel of the historically recognized right to keep and bear arms” protected by the Second Amendment in a case brought by the Second Amendment Foundation.

    SAF was joined in the case by the California Association of Federal Firearms Licensees, the Calguns Foundation, Inc., and three businessmen, John Teixeira, Steve Nobriga and Gary Gamaza. SAF was represented by noted California civil rights attorney Don Kilmer, and the case was supported by an important amicus brief filed by Virginia attorney Alan Gura for the Citizens Committee for the Right to Keep and Bear Arms. Gura won both the Heller and McDonald Second Amendment rulings before the U.S. Supreme Court.

    “This is an important decision,” said SAF founder and CCRKBA Chairman Alan Gottlieb. “It remands the case back to the lower court for further proceedings consistent with the ruling as it pertains to the Second Amendment.”

    The lawsuit was against an Alameda County ordinance that prohibits gun stores from being located within 500 feet of a residential zone. Writing for the majority, Judge Diarmuid F. O’Scannlain noted that, “the Ordinance burdened conduct protected by the Second Amendment and that it therefore must be subjected to heightened scrutiny—something beyond mere rational basis review.”

    “Both SAF and CCRKBA can be proud of this victory,” Gottlieb stated. “We agree with Judge O’Scannlain’s explanation that ‘the county had failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment,’ as the judge wrote, ‘requires something more rigorous than the unsubstantiated assertions offered to the district court.'”

    Quoting the Supreme Court ruling in SAF’s 2010 landmark McDonald case, Judge O’Scannlain reiterated, “The right of law-abiding citizens to keep and to bear arms is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.'”

    The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms.  Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.


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#4 cherryriver

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Posted 16 May 2016 - 01:56 PM

Second Amendment Foundation.  Don Kilmer.  Calguns.  What a combination!
This is a big smash, and should, if there's a lick of sense in the world, have a good, solid effect in the County Cook, Illinois.
Even if it's only for the bad people to hear some serious footsteps.


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#5 skinnyb82

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Posted 16 May 2016 - 02:07 PM

Judge Silverman concurred in part and dissented in part. He reasoned that there's already enough FFLs and doesn't prohibit ownership so the Ordinance is constitutional. Asserting that the issue is "good customer service" as opposed to infringing on the rights of firearm dealers by prohibiting them from doing business within 500 ft of a residential area (which is probably everywhere, like in Chiraq). Sorry Judge Silverman, the "well this law doesn't actually burden gun owners, it only burdens gun dealers, so that's OK even though dealers and owners are both protected by the Second Amendment" argument fails on its face. "Even assuming for the sake of discussion that merchants who want to sell guns commercially have standing to assert the personal, individual rights of wholly hypothetical would-be buyers — a dubious assumption, in my opinion — the first amended complaint does not explain how Alameda County’s zoning ordinance, on its face or as applied, impairs any actual person’s individual right to bear arms, no matter what level of scrutiny is applied. Instead, the first amended complaint alleges that would-be buyers are entitled to the enhanced customer service experience that plaintiffs could provide. Now, I like good customer service as much as the next guy, but it is not a constitutional right." Sent from my VS987 using Tapatalk
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#6 skinnyb82

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Posted 16 May 2016 - 02:27 PM

This little piece from the majority is....awesome. Cites the Illinois Association of Firearm Retailers v. Chicago case, Mance v. Holder, Radich v. Guerrero, proceeds to admonish Alameda County for presenting nothing but baseless BS to support its position. "Thus, the Second Amendment 'right must also include the right to acquire a firearm.' Illinois a**’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928, 930 (N.D. Ill. 2014). As the District Court for the Northern District of Illinois noted in striking down a Chicago ordinance that abridged such right, a 'ban on gun sales and transfers prevents [citizens] from fulfilling . . . the most fundamental prerequisite of legal gun ownership—that of simple acquisition.' Id. at 938; see also Mance v. Holder, 74 F. Supp. 3d 795, 807 n.8 (N.D. Tex. 2015) ('[O]perating a business that provides Second Amendment services is generally protected by the Second Amendment, and prohibitions on firearms sales are subject to similar scrutiny.'); Radich v. Guerrero, No. 1:14-CV-00020, 2016 WL 1212437, at *7 (D. N. Mar. I. Mar. 28, 2016) ('If the Second Amendment individual right to keep and bear a handgun for self-defense is to have any meaning, it must protect an eligible individual’s right to purchase a handgun, as well as the complimentary right to sell handguns.'). Alameda County has offered nothing to undermine our conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms." Sent from my VS987 using Tapatalk
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#7 chislinger

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Posted 16 May 2016 - 05:19 PM

I fully expect this to get en banc and delayed for years, just like Peruta which may not be decided until 2019 or so.


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#8 officedrone

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Posted 16 May 2016 - 09:27 PM

Would this have any weight in Chicago? Despite our own gun store ban overturn, no gun store or range can open here because of the overly restrictive zoning and because the permits require signoff from the alderman (and so far they've refused to sign off).

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#9 RoadyRunner

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Posted 16 May 2016 - 09:32 PM

Would this have any weight in Chicago? Despite our own gun store ban overturn, no gun store or range can open here because of the overly restrictive zoning and because the permits require signoff from the alderman (and so far they've refused to sign off).

It's CA9, so no. Chicago is in CA7. Unless it gets appealed to SCOTUS, and we prevail.

It can certainly be used in arguments though should such a case come forward in Chicago / CA7.

Edited by RoadyRunner, 16 May 2016 - 09:34 PM.

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#10 C0untZer0

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Posted 17 May 2016 - 06:17 AM

Unfortunately the prevailing attitude with leftist politicians in Illinois is that the Constitution is meaningless and doesn't need to be followed when crafting legislation.  To them the Constitution is not law but a random collection of words with no meaning, waiting to be defined by the Supreme Court which will create law as it sees fit.  Their goal is to change the country however they think it should be changed and the constitution be damned.  The strategy is to stack the courts with activist judges who practice outcome-based jurisprudence.

 

We already know how people like Representative Scott Drury view this.  Since its not CA7 he'll say it doesn't apply to Illinois. If it were CA7 he'd say it doesn't apply to Illinois because it hasn't gone to the Supreme Court yet.


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#11 stevem4134

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Posted 17 May 2016 - 06:17 AM

Can this be used to fight HB-1016 HF1?



#12 borgranta

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Posted 17 May 2016 - 12:42 PM

Would this have any weight in Chicago? Despite our own gun store ban overturn, no gun store or range can open here because of the overly restrictive zoning and because the permits require signoff from the alderman (and so far they've refused to sign off).

It's CA9, so no. Chicago is in CA7. Unless it gets appealed to SCOTUS, and we prevail.

It can certainly be used in arguments though should such a case come forward in Chicago / CA7.
Chicago probably would require FFLs to be 1000 ft away from a school zone so if such a requirement were challenged this case could be cited in challenging such a burdensom regulation.
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#13 skinnyb82

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Posted 17 May 2016 - 12:44 PM

Can this be used to fight HB-1016 HF1?

Yes, it can. It would be a persuasive authority, but an authority nonetheless.

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#14 firepiper

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Posted 17 May 2016 - 06:31 PM

Would this have any weight in Chicago? Despite our own gun store ban overturn, no gun store or range can open here because of the overly restrictive zoning and because the permits require signoff from the alderman (and so far they've refused to sign off).
It's CA9, so no. Chicago is in CA7. Unless it gets appealed to SCOTUS, and we prevail.
It can certainly be used in arguments though should such a case come forward in Chicago / CA7.Chicago probably would require FFLs to be 1000 ft away from a school zone so if such a requirement were challenged this case could be cited in challenging such a burdensom regulation.


There is a graphic circulating that shows just that scenario....

I'll try to remember to save it next time I see it

#15 TomKoz

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Posted 19 May 2016 - 10:26 AM

Right to purchase & sell firearms ....

How does this decision jive with Fed law that does not allow purchase / transfer of handguns across state line of your state of residence???

I see a conflict there.
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#16 kwc

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Posted 19 May 2016 - 10:30 AM

Right to purchase & sell firearms ....

How does this decision jive with Fed law that does not allow purchase / transfer of handguns across state line of your state of residence???

I see a conflict there.

 

I don't know the impact of this case specifically, but Mance v. Holder (now Mance v. Lynch) specifically addressed this.  The District court's decision was appealed to the 5th Circuit.  I don't know the current status.


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#17 skinnyb82

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Posted 19 May 2016 - 01:51 PM

Mance v. Lynch is currently being considered by CA5. Orals were back in January. Panel consisted of Judges Prado, Owen, and Haynes. All three of the judges on the merits panel are Bush II appointees. Sent from my VS987 using Tapatalk

Edited by skinnyb82, 19 May 2016 - 01:56 PM.

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#18 Charles Nichols

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Posted 22 July 2016 - 01:10 PM

The petition for rehearing en banc was filed yesterday.  I track this case at my website and post updates when they become available.  It is impossible to predict whether or not the petition will be granted.  Most en banc petitions are denied.  One indication of whether or not there is an interest in hearing the case en banc is if the Court requests a response to the petition for rehearing en banc.



#19 Charles Nichols

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Posted 27 December 2016 - 09:40 PM

Update by Charles Nichols, President of California Right To Carry – December 27,  2016 –  En Banc Petition Granted – Three Judge Panel Decision Vacated.

En Banc Petition Granted – Three Judge Panel Decision Vacated – December 27, 2016



#20 Hipshot Percussion

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Posted 28 December 2016 - 11:37 AM

Nice


“I have fought the good fight to the end; I have run the race to the finish: I have kept the faith."  Timothy Chapter 4 verse 7

 

"Legitimate self-defense has absolutely nothing to do with the criminal misuse of guns."   Gerald Vernon, veteran firearms instructor

 

New Gunner Journal

 


#21 transplant

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Posted 28 December 2016 - 03:31 PM

Sounds like CA9 has decided that the 500 foot restriction should be upheld.

This would be the second pro-2A CA9 lower court decision that the circuit court has voted on trashing.

Hillary Clinton is an "Original Classification Authority" - she knows exactly what she did with her emails.

 

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

 

Sec. 1.2. Classification Levels.

 

(a) Information may be classified at one of the following three levels:

 

(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.

(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.

(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.

 

(tt) “Violation” means:

(1) any knowing, willful, or negligent action that could reasonably be expected to result in an unauthorized disclosure of classified information;

 

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#22 chislinger

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Posted 28 December 2016 - 03:55 PM

Trump can't start appointing judges soon enough.
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#23 skinnyb82

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Posted 28 December 2016 - 06:54 PM

CA9 goes en banc whenever there's a panel ruling that they don't like. Peruta, enough said. They went en banc over the panel decision on the Arizona ballot harvesting law (summarily reversed by SCOTUS) and a deportation order affirmed by the panel which involved a gay (or transgendered, I can't remember) illegal (he says he will be victimized if he returns to his country....CA9 victimizes American citizens on days ending in "y" so I'm not sympathetic). Barry Bonds, anyone? Can't have a "sports icon" and "San Francisco Giants legend" be labeled a federal felon, can we? Nooo Sent from my VS987 using Tapatalk

Edited by skinnyb82, 28 December 2016 - 06:55 PM.

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#24 Charles Nichols

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Posted 31 December 2016 - 01:12 AM

As I recall, the panel of judges is selected six weeks before oral arguments which are tentatively scheduled for the week of March 20, 2017.  President Elect Trump takes office on January 20th.  Had he already picked his four nominees then the FBI background checks could have been completed before he takes office, his nominees rubber-stamped by the judiciary committee and ratified by the Senate in time to qualify for the en banc pool of judges who will hear this case.

 

Unfortunately, he said he isn't even going to begin to interview for a potential Supreme Court nominee until after January 20th. If SCOTUS isn't high on his list then I don't see why inferior court judges would be.

 

And there are already over 100 inferior Federal court vacancies for Trump to fill including four on the 9th circuit court of appeals.

 

If I haven't already mentioned it here, by the time the midterm elections roll around in two years, all but five of the currently active judges on the 9th circuit court of appeals will be 65 years of age or older.  

 

Here is a list of the current active judges, their current age and who appointed them:
 
Stephen Reinhardt 85 Carter
Carlos T. Bea 82 G.W. Bush
Milan D. Smith, Jr. 74 G.W. Bush
William A. Fletcher 71 Clinton
Marsha S. Berzon 71 Clinton
Ronald M. Gould 70 Clinton
Richard A. Paez 69 Clinton
Andrew D. Hurwitz 69 Obama
Susan P. Graber 67 Clinton
N. Randy Smith 67 G.W. Bush
Alex Kozinski 66 Reagan
Consuelo Maria Callahan 66 G.W. Bush
M. Margaret McKeown 65 Clinton
Johnnie B. Rawlinson 64 Clinton
Sidney Runyan Thomas 63 Clinton
Richard C. Tallman 63 Clinton
Jay Bybee 63 G.W. Bush
Kim McLane Wardlaw 62 Clinton
Sandra Segal Ikuta 62 G.W. Bush
Mary H. Murguia 56 Obama
Morgan Christen 55 Obama
Jacqueline Nguyen 51 Obama
Paul J. Watford 49 Obama
John B. Owens 45 Obama
Michelle T. Friedland 44 Obama
 


#25 Charles Nichols

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Posted 10 January 2017 - 04:47 PM

En banc oral argument will take place during the week of March 20, 2017, in San Francisco, California.

 

Briefs available at my website.






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