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Culp vs Madigan - Lawsuit Filed On Behalf of Non-Residents


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#391 borgranta

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Posted 29 June 2016 - 11:43 PM

The reliance on Peruta and other CCW is laughable considering, when Moore was handed down, that THEY were the ones that passed a CCW regime, not an OC one. So they're telling the court IOW, what we passed after Moore isn't even 2A protected activity, we did a bait-and-switch.

What makes it "laughable"?  
 
Judge Posner did not say that Illinois could ban Open Carry as per the Heller decision he said that Illinois could ban concealed carry.  It was the NRA and others who lobbied the legislature to ban Open Carry.
 
There isn't a single Federal Circuit or state high court which has held that there is a Second Amendment right to concealed carry.  If, more likely when, the court of appeals decides that there is no Second Amendment right to concealed carry then all of the remaining claims are subject to rational basis review.
 
Which means the remaining claims fail.
Does this mean that ILLINOIS is in contempt of court by still banning open carry despite his wording in the Moore ruling.
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#392 press1280

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Posted 30 June 2016 - 01:40 AM

 

The reliance on Peruta and other CCW is laughable considering, when Moore was handed down, that THEY were the ones that passed a CCW regime, not an OC one. So they're telling the court IOW, what we passed after Moore isn't even 2A protected activity, we did a bait-and-switch.

What makes it "laughable"?  

 

Judge Posner did not say that Illinois could ban Open Carry as per the Heller decision he said that Illinois could ban concealed carry.  It was the NRA and others who lobbied the legislature to ban Open Carry.

 

There isn't a single Federal Circuit or state high court which has held that there is a Second Amendment right to concealed carry.  If, more likely when, the court of appeals decides that there is no Second Amendment right to concealed carry then all of the remaining claims are subject to rational basis review.

 

Which means the remaining claims fail.

 

Here's why it's laughable-Moore said you can't have a total ban on public carry. IL is saying see Peruta, we can ban concealed carry (or in this case ban residents of 45 states from concealed carry). So what does that leave? Oh yea, OC, which we also ban.

They're playing a dangerous game where they could conceivably end up with both OC AND CC, maybe not directly because of this case but if they get a judgment based off Peruta then an OC challenge should easily prevail.



#393 Charles Nichols

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Posted 30 June 2016 - 08:51 AM

 

 

The reliance on Peruta and other CCW is laughable considering, when Moore was handed down, that THEY were the ones that passed a CCW regime, not an OC one. So they're telling the court IOW, what we passed after Moore isn't even 2A protected activity, we did a bait-and-switch.

What makes it "laughable"?  
 
Judge Posner did not say that Illinois could ban Open Carry as per the Heller decision he said that Illinois could ban concealed carry.  It was the NRA and others who lobbied the legislature to ban Open Carry.
 
There isn't a single Federal Circuit or state high court which has held that there is a Second Amendment right to concealed carry.  If, more likely when, the court of appeals decides that there is no Second Amendment right to concealed carry then all of the remaining claims are subject to rational basis review.
 
Which means the remaining claims fail.
Does this mean that ILLINOIS is in contempt of court by still banning open carry despite his wording in the Moore ruling.

 

Had the NRA or SAF asked Judge Poser (or the district court judge assigned to their case) to hold Illinois in contempt for banning Open Carry then yes.  But the NRA and SAF lobbied the legislature to ban Open Carry didn't they.



#394 Charles Nichols

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Posted 30 June 2016 - 08:55 AM

 

The reliance on Peruta and other CCW is laughable considering, when Moore was handed down, that THEY were the ones that passed a CCW regime, not an OC one. So they're telling the court IOW, what we passed after Moore isn't even 2A protected activity, we did a bait-and-switch.


What makes it "laughable"?  
 
Judge Posner did not say that Illinois could ban Open Carry as per the Heller decision he said that Illinois could ban concealed carry.  It was the NRA and others who lobbied the legislature to ban Open Carry.
 
There isn't a single Federal Circuit or state high court which has held that there is a Second Amendment right to concealed carry.  If, more likely when, the court of appeals decides that there is no Second Amendment right to concealed carry then all of the remaining claims are subject to rational basis review.
 
Which means the remaining claims fail.

Iirc, SCOTUS ruled that bans are lawful for open carry OR concealed carry, but not both. Therefore, a prohibition of open carry makes concealed carry lawful.

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You recall incorrectly.  SCOTUS held that there is absolutely no right to concealed carry and, no offense, the argument that something which is not a right (concealed carry) must be permitted because something which is a right, and has always been a right (Open Carry) is banned is nutty.  Never in the history of American courts has there been a single decision which so held.  Which is why no such case has ever been cited by anyone.



#395 Charles Nichols

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Posted 30 June 2016 - 08:57 AM

 

 

The reliance on Peruta and other CCW is laughable considering, when Moore was handed down, that THEY were the ones that passed a CCW regime, not an OC one. So they're telling the court IOW, what we passed after Moore isn't even 2A protected activity, we did a bait-and-switch.

What makes it "laughable"?  

 

Judge Posner did not say that Illinois could ban Open Carry as per the Heller decision he said that Illinois could ban concealed carry.  It was the NRA and others who lobbied the legislature to ban Open Carry.

 

There isn't a single Federal Circuit or state high court which has held that there is a Second Amendment right to concealed carry.  If, more likely when, the court of appeals decides that there is no Second Amendment right to concealed carry then all of the remaining claims are subject to rational basis review.

 

Which means the remaining claims fail.

 

Here's why it's laughable-Moore said you can't have a total ban on public carry. IL is saying see Peruta, we can ban concealed carry (or in this case ban residents of 45 states from concealed carry). So what does that leave? Oh yea, OC, which we also ban.

They're playing a dangerous game where they could conceivably end up with both OC AND CC, maybe not directly because of this case but if they get a judgment based off Peruta then an OC challenge should easily prevail.

 

Illinois isn't in any danger.  The plaintiffs do not seek to carry openly and do not challenge Illinois' Open Carry bans.  They plaintiffs seek concealed carry permits and like the en banc Peruta decision, that is the only question before the court.  The plaintiffs lose and the Illinois bans on Open Carry remain because they were never challenged by the plaintiffs.  



#396 Molly B.

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Posted 30 June 2016 - 09:05 AM

[quote name="Charles Nichols" post="1018007" timestamp="1467298272"][quote name="borgranta" post="1017933" timestamp="1467265382"]
[quote name="Charles Nichols" post="1017883" timestamp="1467254343"]
[quote name="press1280" post="1017498" timestamp="1467140247"]
The reliance on Peruta and other CCW is laughable considering, when Moore was handed down, that THEY were the ones that passed a CCW regime, not an OC one. So they're telling the court IOW, what we passed after Moore isn't even 2A protected activity, we did a bait-and-switch.
[/quote]
What makes it "laughable"?  
 
Judge Posner did not say that Illinois could ban Open Carry as per the Heller decision he said that Illinois could ban concealed carry.  It was the NRA and others who lobbied the legislature to ban Open Carry.
 
There isn't a single Federal Circuit or state high court which has held that there is a Second Amendment right to concealed carry.  If, more likely when, the court of appeals decides that there is no Second Amendment right to concealed carry then all of the remaining claims are subject to rational basis review.
 
Which means the remaining claims fail.[/quote]
Does this mean that ILLINOIS is in contempt of court by still banning open carry despite his wording in the Moore ruling.
[/quote]
Had the NRA or SAF asked Judge Poser (or the district court judge assigned to their case) to hold Illinois in contempt for banning Open Carry then yes.  But the NRA and SAF lobbied the legislature to ban Open Carry didn't they.[/quote]
The Illinois legislature? No.
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#397 stm

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Posted 30 June 2016 - 10:23 AM

 Judge Posner did not say that Illinois could ban Open Carry as per the Heller decision he said that Illinois could ban concealed carry.  It was the NRA and others who lobbied the legislature to ban Open Carry.  


I'm sorry, but I just re-read Moore v. Madigan and I cannot find where Judge Posner, writing for the majority, stated that the state could ban Concealed Carry but not Open Carry. He said that states

"...may be able to require 'open carry' âthat is, require persons who carry a gun in public to carry it in plain view rather than concealed."

That's not a ban on concealed carry, or a statement that the right is to only carry openly. It's a time/place/manner restriction. Both the Moore and Shepard lawsuits were about the complete ban on carrying a ready-to-use firearm outside the home. This wasn't about Open or Concealed Carry, it wasn't about Shall Issue or May Issue. The court overturned a complete ban on all forms of carry outside the home. In fact, Judge Posner seems to be advocating concealed carry over open carry:

"Some weapons do not terrify the public (such as well-concealed weapons), and so if the statute was (as it may have been) intended to protect the public from being frightened or intimidated by the brandishing of weapons, it could not have applied to all weapons or all carriage of weapons."

The CONCEALED carry laws that were proposed before Moore were seen to be more palatable to the legislators who were not firm 2A supporters. They didn't want us scaring the general public. The Firearms Concealed Carry Act was passed without the input of the NRA. Our NRA representative was specifically excluded from negotiations on the bill. Our carry law is a result of what the anti-gun leadership felt they had to grudgingly give us in order to get enough votes to pass before the court's stay expired. To claim that the NRA lobbied for banning open carry is not accurate.

Edited by stm, 30 June 2016 - 10:27 AM.

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#398 kwc

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Posted 30 June 2016 - 12:20 PM

The Nichols v. Brown thread dives deeper into this issue.  May I suggest we continue the discussion there so as to not rehash old ground?

 

I've added some thoughts in this post: http://illinoiscarry...62013&p=1018082


Edited by kwc, 30 June 2016 - 12:47 PM.

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#399 stm

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Posted 30 June 2016 - 12:37 PM

You're right. We shouldn't clutter this thread with discussions about another lawsuit. Mea culpa.

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#400 domin8

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Posted 01 July 2016 - 10:38 PM

I may have just discovered a way to push an argument in this case that hasn't really been pushed beyond a simple claim. We've seen/heard the questions about whether or not Illinois has done it's due diligence in determining which states are "substantially similar". Illinois, so far, has been able to say, "Yes we did. We sent out surveys." What's the counter argument to that? There hasn't been much from the plaintiff. I may have just discovered it by using the ISPs spreadsheet (https://www.ispfsb.c...ilarsummary.pdf) against them. Look down the column of the first question. Go all the way down to Washington DC. It's the only jurisdiction that has responded where they said they DON'T regulate who can carry a firearm. The DC ccw law is so restrictive that there's no way that's true. Furthermore, look a few rows up at Vermont, a Constitutional carry state. They have a checkmark indicating they do regulate who may carry a concealed firearm in public. 2 exact opposite answers from reality at both extremes of measure. This, if employed accurately, could be of some help. Sent from my SM-G935T using Tapatalk
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#401 Gamma

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Posted 02 July 2016 - 01:47 AM

I may have just discovered a way to push an argument in this case that hasn't really been pushed beyond a simple claim. We've seen/heard the questions about whether or not Illinois has done it's due diligence in determining which states are "substantially similar". Illinois, so far, has been able to say, "Yes we did. We sent out surveys." What's the counter argument to that? There hasn't been much from the plaintiff. I may have just discovered it by using the ISPs spreadsheet (https://www.ispfsb.c...ilarsummary.pdf) against them. Look down the column of the first question. Go all the way down to Washington DC. It's the only jurisdiction that has responded where they said they DON'T regulate who can carry a firearm. The DC ccw law is so restrictive that there's no way that's true. Furthermore, look a few rows up at Vermont, a Constitutional carry state. They have a checkmark indicating they do regulate who may carry a concealed firearm in public. 2 exact opposite answers from reality at both extremes of measure. This, if employed accurately, could be of some help. Sent from my SM-G935T using Tapatalk

I don't see how their methodology could possibly be described as "due diligence". If Illinois' Attorney General had analyzed other state's laws, perhaps in consultation with other state's AGs, they would have an end result which might be viable.

Your observations just add to the stack of obviously incorrect information in their chart.

The whole premise of the chart is entirely a fabrication of ISP's administrative rules anyway, the specifics are not based on the law and frankly seem quite disconnected from the seeming purpose which was to compare CCW licensing regimes.

Edited by Gamma, 02 July 2016 - 01:50 AM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#402 domin8

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Posted 02 July 2016 - 08:20 AM

I may have just discovered a way to push an argument in this case that hasn't really been pushed beyond a simple claim. We've seen/heard the questions about whether or not Illinois has done it's due diligence in determining which states are "substantially similar". Illinois, so far, has been able to say, "Yes we did. We sent out surveys." What's the counter argument to that? There hasn't been much from the plaintiff. I may have just discovered it by using the ISPs spreadsheet (https://www.ispfsb.c...ilarsummary.pdf) against them. Look down the column of the first question. Go all the way down to Washington DC. It's the only jurisdiction that has responded where they said they DON'T regulate who can carry a firearm. The DC ccw law is so restrictive that there's no way that's true. Furthermore, look a few rows up at Vermont, a Constitutional carry state. They have a checkmark indicating they do regulate who may carry a concealed firearm in public. 2 exact opposite answers from reality at both extremes of measure. This, if employed accurately, could be of some help. Sent from my SM-G935T using TapatalkI don't see how their methodology could possibly be described as "due diligence". If Illinois' Attorney General had analyzed other state's laws, perhaps in consultation with other state's AGs, they would have an end result which might be viable.Your observations just add to the stack of obviously incorrect information in their chart.The whole premise of the chart is entirely a fabrication of ISP's administrative rules anyway, the specifics are not based on the law and frankly seem quite disconnected from the seeming purpose which was to compare CCW licensing regimes.

My attempt at the post is merely to provide evidence to the claim. Now the plaintiff's counsel can go from saying, "No you didn't." Every time the defendant says, "Yes we did. Here's a spreadsheet of our surveys." To, "Here's how your surveys results are wrong." The last part, in my observations, often being missed. It's an opportunity to use what the defendants may claim as supportive evidence against them.

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#403 chislinger

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Posted 02 July 2016 - 09:26 AM

But the NRA and SAF lobbied the legislature to ban Open Carry didn't they.

When did they do that? I'm pretty sure open carry was banned in Illinois long before the SAF even existed.
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#404 Tvandermyde

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Posted 02 July 2016 - 09:52 AM

If Mr. Nichols' acumen here is any demonstration of his understanding case law, color me less than impressed
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#405 lockman

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Posted 02 July 2016 - 09:52 AM

Vermont does regulate who may carry arms. They have answered factually. The fact that they do not issue permits does not negate the fact that they do have laws in place regulating who may carry, or more precisely, who may not carry firearms. And the District of Columbia answered inappropriately because they do regulate who can carry a firearm it's just that their regulations are prohibitive and virtually assure no one does.

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#406 kwc

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Posted 09 July 2016 - 04:49 AM

Appellants' (plaintiffs') reply brief has been filed and is attached below.

Attached Files


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#407 kwc

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Posted 09 July 2016 - 06:01 AM

For convenience, here is the Summary of Argument:

SUMMARY OF ARGUMENT

Defendants acknowledge that the Plaintiffs' claim is within the scope of the Second Amendment (Dkt. 24, p.17), but continue to argue, as if Moore v. Madigan never occurred, that the core of the Second Amendment right is limited to the home. This fallacy allows the State to act as if the Plaintiffs are requesting a privilege instead of demanding a right, which in turn allows the State to diminish the Plaintiffs' claim and argue for a lesser level of scrutiny than that required on this issue in this Circuit. Because the virtual non-resident CCL application ban strikes at the core Second Amendment right of self-defense, it must be struck down. To the extent any level of scrutiny is applied to analyze the carrying ban, it must be strict scrutiny, or the "not quite" strict scrutiny used in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).

Fundamental right notwithstanding, Defendants continue to wrongly argue that the State's ban on the public carry of firearms in Illinois by qualified individuals from 45 states substantially serves an important governmental interest, and that some sort of harm is actually being prevented by the 45 state non-resident CCL application ban. Even if intermediate scrutiny were appropriate, the Defendants are wrong for four reasons:

First, the Plaintiffs are the law-abiding persons described in Heller, McDonald, Ezell, and Moore, with CCLs in their home states, if not additionally from other states. One Plaintiff is a Colonel in the United States Air Force, one owns a firearms company, and multiple of the Plaintiffs are actually Illinois concealed carry instructors. The only element for a preliminary injunction of which the District Court erroneously ruled against the Plaintiffs was the "balance of harms" test, but granting them licenses or, more to the point, allowing them to apply for concealed carry licenses, will not endanger the public in the slightest.

Second, the State already trusts these Plaintiffs (and all non-residents with CCLs in their home states) to carry firearms in their vehicles, on others' property with permission, and while hunting or at a firing range, all without a concealed carry license in Illinois. This belies any concern about allowing the Plaintiffs access to firearms in Illinois, as if the applying for/granting of an Illinois CCL will suddenly turn them all into criminals. Rather, the State should be encouraging them to undergo training and comply with all the Firearms Concealed Carry Act requirements, pay the required fees, and voluntarily enter themselves into the State's network.

Third, the people committing gun crimes in Illinois, whether they are from Illinois or elsewhere, are not the ones who are complying with all the training and other requirements under the Firearms Concealed Carry Act, paying all fees, and voluntarily entering themselves into the ISP network. This point should be obvious, but the State continues to act as if everyone with possession of a firearm, even those who go through the rigmarole of obtaining a license, will eventually turn into a mentally deranged person, a terrorist, or a criminal.

Fourth, the substantial concerns the State is claiming are also belied by the fact that the ISP does not know what an Illinois resident is doing when they are out of state, yet their CCL's are not revoked when they return. Likewise, a non-resident who lives in one of the 45 banned states for decades is instantly eligible to apply for an Illinois CCL once they move to Illinois or one of the four approved states, even though the ISP does not know what that person was doing during those prior decades.

The public carrying of firearms for self-defense is a core fundamental right protected by the Second Amendment, as this Court held in Moore v, Madigan, 702 F.3d 933 (7th Cir. 2012). Defendants attempt to confuse the issue by making this a case purely about concealed carry, but it is not, any more than it was in Moore. Given Illinois's open carry ban, the issue is, and always has been, a complete ban on the public carry of firearms by non-residents, notwithstanding the exceptions about which Illinois apparently has no concern. Further, this case is one degree removed from that, as the Plaintiffs simply wish to apply for a CCL in Illinois. They would still need to meet all qualification requirements of the Firearms Concealed Carry Act. This is not a lawsuit about reciprocity or automatic acceptance.

When viewed logically, the challenged non-resident virtual CCL application ban is clearly unconstitutional, and Plaintiffs were entitled to preliminary injunctive relief.
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#408 Gamma

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Posted 09 July 2016 - 11:14 AM

Appellants' (plaintiffs') reply brief has been filed and is attached below.

Any chance of rehosting this somewhere?
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#409 kwc

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Posted 09 July 2016 - 03:44 PM

I'm traveling and am not in a position to host it elsewhere. Download link works on my iPhone and iPad at the moment...
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#410 Gamma

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Posted 09 July 2016 - 04:19 PM

I finally got it to download. Brief seems strong.

The only thing I would like to see, which they seem to dance around but never overtly say: that the State has chosen a regulatory scheme for a protected civil right which they knowingly and admittedly cannot fulfill. Due process is denied because the process they knowingly chose is impossible to accomplish.
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#411 Charles Nichols

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Posted 19 July 2016 - 12:42 AM

If Mr. Nichols' acumen here is any demonstration of his understanding case law, color me less than impressed

I don't think the word "acumen" means what you think it means but points for trying to expand your limited vocabulary.

 

On a related note, this case (Culp v. Madigan) was filed 635 days ago today and in that period of time it has gone through the district court and been fully briefed on appeal.  If the past is any indication then you will have a decision by the court of appeals by around the two year mark.

 

In the 9th Circuit, we have a carry case which was filed in the district court on September 2, 2008, and still hasn't been fully briefed on appeal (filed on August 28, 2009).  



#412 BIGDEESUL

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Posted 19 July 2016 - 05:36 AM

If Mr. Nichols' acumen here is any demonstration of his understanding case law, color me less than impressed I don't think the word "acumen" means what you think it means but points for trying to expand your limited vocabulary.    
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#413 domin8

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Posted 19 July 2016 - 05:06 PM

Technically, isn't all vocabulary limited? acumen noun acu·men \É-Ëkyü-mÉn, Ëa-kyÉ-mÉn\ Simple Definition: the ability to think clearly and make good decisions Source: Merriam-Webster's Learner's Dictionary The fact that Mr. Charles Nichols is arguing with Mr. TVandermyde over Culp v Madigan clearly demonstrates the word was utilized properly and accurately by Mr. TVandermyde. Sent from my SM-G935T using Tapatalk

Edited by domin8, 19 July 2016 - 05:06 PM.

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#414 Molly B.

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Posted 19 July 2016 - 05:27 PM

Gentleman, this is very far from the topic at hand and I had hoped it would fade into the distance. Please return to the topic.


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#415 kwc

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Posted 29 July 2016 - 08:12 PM

Date for oral argument has been set: September 22, 2016, in Chicago. From today's order:

IT IS ORDERED that this case be orally argued on Thursday, September 22, 2016, in the Main Courtroom, Room 2721 of the United States Court of Appeals for the Seventh Circuit, 219 South Dearborn Street, Chicago, Illinois, at 9:30 a.m.

Oral argument will be no more than 25 minutes for each side. Counsel are advised that the panel of judges assigned to oral argument may decide, after reading the briefs, that less time is required for oral argument.

IT IS FURTHER ORDERED that counsel notify the Calendar Clerk ( 312-435-5850 ) who will present oral argument by completing the oral argument confirmation form and filing an electronic copy of the completed form through the Electronic Case Filing (ECF) System. Notice of this case entry must be received in the clerk's office no later than 5 business days prior to the scheduled argument date.
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#416 press1280

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Posted 30 July 2016 - 03:17 PM

Excellent. Glad to see CA7 still moves things along at a brisk pace, unlike some other circuits.

 

Needless to say this is a very important case which could have a far reaching consequences.



#417 domin8

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Posted 30 July 2016 - 03:19 PM

And then another 3 months for a decision.... Just in time for Christmas. Sent from my SM-G935T using Tapatalk
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#418 ChicagoZman

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Posted 30 July 2016 - 03:38 PM

And then another 3 months for a decision.... Just in time for Christmas. Sent from my SM-G935T using Tapatalk

That would make a nice Christmas present if ruled in our favor as I could begin carrying about three years after I began teaching.


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#419 kwc

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Posted 30 July 2016 - 03:51 PM

It would make a nice present!
"Let us not become weary in doing good, for at the proper time we will reap a harvest if we do not give up." - Galations 6:9 (NIV)

"If you can't explain it to a six-year old, you don't understand it yourself." - Albert Einstein (paraphrased)

#420 press1280

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Posted 01 August 2016 - 01:49 AM

3 months would be really quick, maybe to the point I'd be worried about what the court rules.






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