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Moore et al v. Madigan et al (On Remand from CA7)


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#1 skinnyb82

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Posted 11 October 2013 - 01:19 PM

Happy Friday. This should cheer up EVERYONE after last week's disaster. Thanks to Todd for the heads-up on this one, hadn't been checking the docket as of late because I figured Myerscough was waiting on an opinion and order from CA7. Well, she ruled on the State's MTD as moot on Wednesday....DENIED. She went even further and, well, this is fun :) Myerscough found that the case is still a live case or controversy because, not only has relief not been granted...at all. Myerscough wants to get in on some of the action and she didn't just give us ammo to take in front of CA7, which the state WILL DO, but argue that the state is, in fact, in contempt of the Court's ruling in Moore v. Madigan.

Opinion and Order issued on 10/9 (Wednesday):
Attached File  Opinion.and.Order.Denying.States.MTD.DE57.pdf   78.45KB   219 downloads

Docket:
https://ia600603.us....015.docket.html

From pp 1-2:

"This cause is before the Court on the Motion to Dismiss as Moot (d/e
51) filed by Defendants Lisa Madigan and Hiram Grau. Defendants’ Motion
is DENIED. A case or controversy still exists because Plaintiffs have not
received the specific relief sought by Plaintiffs in the Amended Complaint.


Furthermore, this Opinion does not address whether Plaintiffs
Michael Moore, Charles Hooks, Peggy Fetcher, Jon Maier, Second
Amendment Foundation, Inc., and Illinois Carry are prevailing parties,
and,
therefore, capable of obtaining attorney’s fees pursuant to 42 U.S.C. § 1988.
Plaintiffs shall file a request for attorney’s fees within 40 days of the
Seventh Circuit’s issuance of a mandate in Shepard v. Madigan, 13-2661."

I'll save the mootness precedent stuff for now, but here's where she goes off the rails (in a GREAT way) and addresses the mootness issues.

"Notably, the legislature did not repeal the Unlawful Use of Weapons
and Aggravated Unlawful Use of a Weapon statutes.
The Firearm
Concealed Carry Act simply amended those statutes
to allow individuals to
obtain a license that will permit such individuals to carry a concealed or
partially concealed, functional, and accessible pistol, revolver, or handgun
outside of the home.

So, in Illinois, an individual can still be charged pursuant to
subsections 720 ILCS 5/24-1(a)(4) and (10), Unlawful Use of Weapons,
when that individual illegally carries a firearm in public.
"

....

The Firearm Concealed Carry Act’s plain language demonstrates the
Illinois legislature’s intent to remove only Illinois’ prohibition on the
carrying
of concealed or partially concealed, functional, and accessible
pistols, revolvers, and handguns outside of the home.
The plain language
also demonstrates the legislature’s intent to continue enforcement of the
Unlawful Use of Weapons and Aggravated Unlawful Use of a Weapon
statutes if an individual does not have a valid license under the Firearm

Concealed Carry Act and if an individual carries weapons other than a
handgun, revolver, or pistol outside of the home.
"

Translation: The FCCA is just the AUUW/UUW with an exemption tacked on...it's still a pig, just with lipstick. And also, she flat-out states that
She then goes on to state that the FCCA does not and cannot provide Plaintiffs with full relief sought as it only provides for carriage of firearms outside the home, while tasers, stun guns, etc are still flat banned even though Moore et al FAC (first amended complaint) asks for FULL relief as in the ability to carry concealed stun guns, tasers, etc. Therefore the State is in contempt.

"However, in Plaintiffs’ Amended Complaint, Plaintiffs argued that
720 ILCS 5/24-1(a)(4) and (10) and 720 ILCS 5/24-1.6, which banned the
carrying of stun guns, tasers, and all firearms outside of the home, were
unconstitutional as applied. Yet, in the Firearm Concealed Carry Act, the
legislature only provided for the carrying of pistols, revolvers, and
handguns outside of the home. The legislature’s actions clearly did not
address Plaintiffs’ claims in the Amended Complaint
that 720 ILCS 5/24-
1(a)(4) and (10) and 720 ILCS 5/24-1.6 unconstitutionally barred qualified
individuals from carrying all firearms outside of the home in Illinois. . . ."

And the ultimate slap in the face to the state :)

"Plaintiffs clearly sought more than just an end to the carrying of
concealed or partially concealed, functional, and accessible pistols,
revolvers, and handguns in public.
In the Amended Complaint, Plaintiffs
challenged the constitutionality of the Illinois statutes that barred private
individuals from carrying any type of firearm in public.

Additionally, as of yet, no procedures are in place for qualified
individuals to apply for and obtain a valid concealed carry license under the
Firearm Concealed Cary Act. As a result, not one person has received the
relief Plaintiffs sought in the Amended Complaint, namely, an opportunity
to carry a concealed or partially concealed firearm outside of the home.
Indeed, the continued inability to obtain a valid permit license under the
Firearm Concealed Carry Act is the basis at issue in plaintiffs’ appeal in this
case’s companion case out of the Southern District of Illinois.
See Shepard
v. Madigan, 132661. Because issues raised in Plaintiffs’ Amended
Complaint remain in controversy, the Court must deny Defendants’ Motion
to Dismiss as Moot.
"

Translation: She found that there is still a blanket ban on carry outside the home as there is no licensure system in place. In addition, Plaintiffs wanted MORE than just a permit licensure system for firearms outside the home. They wanted a declaration of unconstitutionality for the ENTIRE AUUW/UUW that covers weapons. As in tasers, knives, yada yada. This is not the case, clearly. She used the same legal reasoning and, for all intents and purposes, agreed with Shepard that the case is not moot because no relief has been obtained. Yet she went a step further by stating that the FCCA cannot provide for FULL relief as the Plaintiffs' FAC asks for several things (the whole nine yards, declaration of unconstitutionality for carrying guns, tasers, whatever is on the list, outside the home) and the FCCA only gives 'em one (firearms).

She then issued this order:

"Defendants’ Motion to Dismiss as Moot (d/e 51) is DENIED.
Plaintiffs shall file any request for attorney’s fees pursuant to 42 U.S.C. §
1988 within 40 days after issuance of the mandate from the Seventh Circuit
in Shepard v. Madigan, 13-2661."

Translation: MTD as moot is denied, Moore et al have 40 days after CA7 issues its mandate in the latest Shepard hearing to file for attorneys fees but this is not gonna end with Myerscough. The ruling is appealable. I have NO DOUBT that the State will appeal this as this is an appealable ruling, appeal by right. Remember when Posner when ape on Thompson, asking him if the State is in contempt of the panel's ruling? Well, here you go.
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#2 TyGuy

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Posted 11 October 2013 - 01:26 PM

Errrrrm, what? I'm confused by the separate nature of these cases now.
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#3 blazzinbird

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Posted 11 October 2013 - 01:29 PM

So Lisa and Hiram got slapped around in court today huh

If you like your gun, you can keep it...... But only if you don't vote for Hillary next year.

 

A right delayed is a right denied....


#4 cls74

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Posted 11 October 2013 - 01:30 PM

So this will end up in CA7, any thinking Posner may have felt this and wanted to rule on it instead?

Will Posners' opinion on Sheppard have any affect on this or vice versa?

#5 supprmann

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Posted 11 October 2013 - 01:40 PM

Get ma inhaler!!!!!! I can't BREEEEVE!!!!!!

#6 skinnyb82

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Posted 11 October 2013 - 01:49 PM

Myerscough spanked the State on Wednesday. In her opinion and order, she flat-out stated that the FCCA not only does not remedy the defective law, but there is still also a flat-ban on carry outside the home. Plaintiffs were seeking a declaration of unconstitutionality for not just firearms but for less-than-lethal, self-defense weapons like tasers...well anything we're still prohibited from carrying. Myerscough's ruling also plainly states that, since the State does not have a permit system in place, the case has not been mooted. And so on. This made my jaw drop to the floor when I opened the opinion today.
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#7 skinnyb82

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Posted 11 October 2013 - 01:52 PM

So this will end up in CA7, any thinking Posner may have felt this and wanted to rule on it instead?

Will Posners' opinion on Sheppard have any affect on this or vice versa?


Recall, Posner kept asking Thompson (during the first minute or so of orals), "Is the state in contempt?" Well, your answer is right here. They are in contempt because the FAC filed in Moore (and dismissed by Myerscough initially) does not just ask for a declaration of unconstitutionality related to carriage of firearms outside the home. It asks for the section of the UUW that covers tasers, stun guns, "etc." to be declared unconstitutional (and it was) yet the FCCA contains prohibitions on carrying said LTL devices. Is that contempt? Sounds like it.
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#8 BrowningHP

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Posted 11 October 2013 - 02:00 PM

sweet. this might lead one to wonder if this will have any bearing on the as-yet unreleased decision in the appellate court?

Edited by BrowningHP, 11 October 2013 - 02:01 PM.


#9 BillyP

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Posted 11 October 2013 - 02:01 PM

Wondering if this opinion has Posner redrafting his original opinion. I sure hope so.

#10 BrowningHP

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Posted 11 October 2013 - 02:02 PM

Wondering if this opinion has Posner redrafting his original opinion. I sure hope so.


exactly - I wonder if these judges talk?

#11 sctman800

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Posted 11 October 2013 - 02:03 PM

Wow, all this makes my head hurt! But right now I think it hurts in a good way. Like they say "It ain't over till the fat lady sings." Jim.
Kristofferson wrote it and Janis sang it "Freedom's just another word for nothing left to lose."

#12 XtremeRevolution

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Posted 11 October 2013 - 02:05 PM

And would you check that out...she was appointed by obummer too!

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#13 TyGuy

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Posted 11 October 2013 - 02:07 PM

I apologize, what level is Myerscough at compared to Posner and CA7? I have to think that she is below them, so they aren't really bound to abide by her opinion anyway, right?

:scratching head:
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#14 TyGuy

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Posted 11 October 2013 - 02:11 PM

And wouldn't the appeal by right go to CA7?
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#15 RockerXX

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Posted 11 October 2013 - 02:12 PM

I concur with Myerscough...

This is going to get REAL interesting from this point on, and there appears enough ammo and issues brought up that this might even be Supreme Court material, especially in regards to carrying of 'other weapons'...

I'll bet Lisa's next move is once again being watched very closely by many other unfriendly States...

Edited by RockerXX, 11 October 2013 - 02:17 PM.

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#16 Phatty

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Posted 11 October 2013 - 02:15 PM

The ruling is appealable. I have NO DOUBT that the State will appeal this as this is an appealable ruling, appeal by right.

Denials of motions to dismiss are not appealable by right.

#17 borgranta

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Posted 11 October 2013 - 02:15 PM

If you thought Posner was angry during shepard he will likely be twice as much if the state appeals.

Edited by borgranta, 11 October 2013 - 02:22 PM.

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#18 cm.stites

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Posted 11 October 2013 - 02:22 PM

So this will end up in CA7, any thinking Posner may have felt this and wanted to rule on it instead?

Will Posners' opinion on Sheppard have any affect on this or vice versa?

no they are 2 seperate cases with 2 seperate decisions and different grounds of challenges now.

#19 cm.stites

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Posted 11 October 2013 - 02:23 PM

I apologize, what level is Myerscough at compared to Posner and CA7? I have to think that she is below them, so they aren't really bound to abide by her opinion anyway, right?

:scratching head:

myerscough is the stiehl of central illinois. she was the judge in charge of moore vs madigan. she is the federal judge for central illinois. she basically made a split with the southern district that ca7 now may have to deal with it. it doesnt matter what posner says in shepard as they are two different circuits. the only judges that can overrule myerscough and stiehl are the 7th circuit court of appeals and scotus.

Edited by cm.stites, 11 October 2013 - 02:25 PM.


#20 Phatty

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Posted 11 October 2013 - 02:27 PM

The State can't appeal this ruling, nor would they even if they could. After oral arguments in Shepard where the 7th Circuit telegraphed that they were going to affirm Judge Stiehl's order from the Souther District finding that the lawsuit was moot, the State merely needs to sit back and wait for that favorable ruling. Once they have it, they will simply file a motion to reconsider with Judge Myerscough based on the 7th Circuit's order which will be binding precedent.

#21 RockerXX

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Posted 11 October 2013 - 02:28 PM

I apologize, what level is Myerscough at compared to Posner and CA7? I have to think that she is below them, so they aren't really bound to abide by her opinion anyway, right?

:scratching head:


I think the important thing to stay focused on here is that the implementation of the FCCA 'might' (I beg to differ) have satisfied the relief sought in Shepard, but this ruling points out that the FCCA did not address all the relief(s) sought in Moore...

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#22 Phatty

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Posted 11 October 2013 - 02:34 PM

They are in contempt ...

Nobody is in contempt. There hasn't been any order issued to even be in contempt of. The 7th Circuit issue a written opinion finding that a particular law was unconstitutional. It then falls on the district court to issue an order enjoining certain officers of the State from enforcing that law. If those individuals then proceeded to enforce the law, they would be in contempt of the judge's order.

In Shepard, the judge refused to enter an injunction because he decided that the case was moot. No order, no contempt.

In retrospect, the strategy of seeking an injunction from Stiehl instead of Myerscough was mistaken. The plaintiffs in Moore did not ask Myerscough to enter an injunction restraining the enforcement of the UUW, so her order this week was limited to the State's motion to dismiss only. It looks like she would have entered an injunction if it was requested.

Edited by Phatty, 11 October 2013 - 02:34 PM.


#23 cm.stites

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Posted 11 October 2013 - 02:35 PM

They are in contempt ...

Nobody is in contempt. There hasn't been any order issued to even be in contempt of. The 7th Circuit issue a written opinion finding that a particular law was unconstitutional. It then falls on the district court to issue an order enjoining certain officers of the State from enforcing that law. If those individuals then proceeded to enforce the law, they would be in contempt of the judge's order.

In this case, the judge refused to enter an injunction, because he decided that the case was moot. No order, no contempt.

In retrospect, the strategy of seeking an injunction from Stiehl instead of Myerscough was mistaken. The plaintiffs in Moore did not ask Myerscough to enter an injunction restraining the enforcement of the UUW, so her order this week was limited to the State's motion to dismiss only. It looks like she would have entered an injunction if it was requested.

hows it not contempt when the 7ths original order was to grant relief to the plaintiffs when they left out 3 parts of that claim with the new fcca? which myerscough directly mentions.

#24 Phatty

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Posted 11 October 2013 - 02:48 PM

They are in contempt ...

Nobody is in contempt. There hasn't been any order issued to even be in contempt of. The 7th Circuit issue a written opinion finding that a particular law was unconstitutional. It then falls on the district court to issue an order enjoining certain officers of the State from enforcing that law. If those individuals then proceeded to enforce the law, they would be in contempt of the judge's order.

In this case, the judge refused to enter an injunction, because he decided that the case was moot. No order, no contempt.

In retrospect, the strategy of seeking an injunction from Stiehl instead of Myerscough was mistaken. The plaintiffs in Moore did not ask Myerscough to enter an injunction restraining the enforcement of the UUW, so her order this week was limited to the State's motion to dismiss only. It looks like she would have entered an injunction if it was requested.

hows it not contempt when the 7ths original order was to grant relief to the plaintiffs when they left out 3 parts of that claim with the new fcca? which myerscough directly mentions.

Without getting into a long description of how the legal system and appellate hierarchy are structured, the Court of Appeals reviews orders entered by the district courts and decides whether those orders should be affirmed (upheld) or reversed. The Court of Appeals generally doesn't issue direct orders to any party. It simply issues an opinion with legal findings. It is then up to the district court to issue orders that are consistent with the legal findings issued by the appellate court.

In Moore, the 7th Circuit found that the UUW statute was unconstitutional. As a result, it reversed the district court's orders that had dismissed the complaints. The case was then sent back down the district court level so that the district court could issue orders consistent with the 7th Circuit's opinion. But, the district courts did not issue any such orders. That's why the plaintiffs in Shepard have appealed back up to the 7th Circuit -- they are upset that the judge did not enter an order enforcing the 7th Circuit's opinion.

You can be in contempt for refusing to comply with a direct order, but you cannot be in contempt of an opinion.

#25 ragsbo

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Posted 11 October 2013 - 02:52 PM

So bottom line is what? Sounds good but I have had my hopes up to many times just to have them shot down again

#26 Phatty

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Posted 11 October 2013 - 03:02 PM

So bottom line is what? Sounds good but I have had my hopes up to many times just to have them shot down again

Bottom line is it really makes no difference that Myerscough issued a favorable order because the 7th Circuit is going to be coming out with a new opinion any day now that trumps her order.

#27 officedrone

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Posted 11 October 2013 - 03:17 PM

These judges do read what their counterparts have ruled. I don't know if Posner will take her ruling into consideration, but I'm 100% sure he's read it and is aware of it.

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#28 bob

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Posted 11 October 2013 - 04:23 PM

I am not sure this means all that much, but it is a bit of a bone thrown to us I guess.

By the time it works its way around the courts FCCL will probably be available and at least some of the case will be moot.
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#29 spec5

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Posted 11 October 2013 - 04:50 PM

So bottom line is what? Sounds good but I have had my hopes up to many times just to have them shot down again

Bottom line is it really makes no difference that Myerscough issued a favorable order because the 7th Circuit is going to be coming out with a new opinion any day now that trumps her order.

So bottom line you are disagreeing with Skinny when he said, "Good Friday..........etc......." You totally disagree with his take? Now I am more confused about Skinny's first post if you say it makes no difference on what happened with Myerscough. Humm!!!!

Edited by spec5, 11 October 2013 - 04:53 PM.

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#30 transplant

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Posted 11 October 2013 - 05:04 PM

Wow, that was loaded :)

Thanks skinny!

So bottom line is what? Sounds good but I have had my hopes up to many times just to have them shot down again

Bottom line is it really makes no difference that Myerscough issued a favorable order because the 7th Circuit is going to be coming out with a new opinion any day now that trumps her order.


phatty, so if the 7th issues a very unfavorable ruling, what avenues are available to us, given Myerschogh's opinion?