Jump to content

Woollard v. Gallagher


skinnyb82

Recommended Posts

Could a mod pin this case? Purty please :) Given all that's happened, it looks like it's still proceeding. I just got ahold of the response filed by Gallagher, so by the looks of things, we'll get an up or down on 10/15 if the case distribution schedule is accurate and it's conferenced on 10/11. Gura has also indicated that cert petition will be filed in Drake v. Filko (CA3) and Kwong v. Bloomberg (CA2). This is gonna be an interesting SCOTUS term. The SAF Amicus Brief was provided to MD Shooters by Alan Gura, pulled it from there so thank you MD Shooters :)

 

The original cert petition filed in Woollard v. Gallagher:

woollard_petition.pdf

 

SAF's Amicus Brief:

13-137SAFAmicusCuriae.pdf

 

Respondent's Brief in Opposition (BIO):

Woollard_BIO.pdf

Link to comment
Share on other sites

Maryland shooters have gotten the royal shaft from their liberal government.

 

Woolard (plaintiff) was denied a renewedpermit by Gallagher (director of the State police and the Board that controls permits) as he did not present a good, substantial and current reason to get a concealed carry permit.

 

This will be a HUGE decision concerning the rights of all Americans because once the SCOTUS rules, it will affect everyone, not just Maryland.

Cato Institute has a pretty good explanation in plain english

 

Woolard v. Gallagher

 

Of real interest in this case is the fact that the Appelate Court chose to not only ignore Heller but denied that the Heller decision was even correct. In effect, they said the Supreme Court of the United States was wrong in their decision

Edited by Bud
Link to comment
Share on other sites

IMO Moore was the case that SCOTUS wanted to hear... I got that from reading the opinion of SCOTUS watchers.

 

It was taken off the table because Madigan didn't petition to SCOTUS and Illinois passed the FCCA.

 

Now that makes Woollard the next most likely case to go to SCOTUS. Hopefully the Supreme Court does away with may-issue. The other case I think is important is Kwong v Bloomberg - dealing with high costs of permitting, and equal protection.

 

Also another issue that hopefully is dealt with is applying strict scrutiny to these cases instead of using rational basis and then calling it strict or "near-strict" scrutiny.

Link to comment
Share on other sites

It won't get tossed due to that one guy dying?

 

While it would have made a better case IMO if the suspect was still alive the point is that the plaintiff was denied a permit at the time he needed it most, proving that Maryland's system is faulty and that may issue denies a citizen the most basic right of self defense. This is further proven by the fact the suspect DID attack the plaintiff again recently. Yes he took his own life shortly thereafter but the plaintiff was still in grave danger and should have been able to exercise his 2nd Amendment rights and protected himself and his family.

Link to comment
Share on other sites

Denying Woollard's renewal was arbitrary and capricious.

 

Maryland's reasoning behind not renewing Woollard's permit was twofold:

 

1) Threats have a limited shelf life, Woollard hadn't been attacked for several years, so there's no threat.

 

2)Woollard was attacked in his home, Woollard can carry w/o a permit, so he doesn't need a CCP (the assumption here is that Abbott would only attack Woollard again in Woollard's home)

 

It's hard to say what will happen now, it really all just depends on the Supreme Court.

Link to comment
Share on other sites

It won't get tossed due to that one guy dying?

 

While it would have made a better case IMO if the suspect was still alive the point is that the plaintiff was denied a permit at the time he needed it most, proving that Maryland's system is faulty and that may issue denies a citizen the most basic right of self defense. This is further proven by the fact the suspect DID attack the plaintiff again recently. Yes he took his own life shortly thereafter but the plaintiff was still in grave danger and should have been able to exercise his 2nd Amendment rights and protected himself and his family.

 

Just to be clear, the plaintiff was his father-in-law, who WAS NOT attacked this time. The now-deceased person attacked his estranged wife (again) and his OWN parents.

Link to comment
Share on other sites

It won't get tossed due to that one guy dying?

 

While it would have made a better case IMO if the suspect was still alive the point is that the plaintiff was denied a permit at the time he needed it most, proving that Maryland's system is faulty and that may issue denies a citizen the most basic right of self defense. This is further proven by the fact the suspect DID attack the plaintiff again recently. Yes he took his own life shortly thereafter but the plaintiff was still in grave danger and should have been able to exercise his 2nd Amendment rights and protected himself and his family.

 

Just to be clear, the plaintiff was his father-in-law, who WAS NOT attacked this time. The now-deceased person attacked his estranged wife (again) and his OWN parents.

 

My bad. Thanks for clearing that up. I knew he'd attacked someone again and thought it was the plaintiff. Still, it goes to show he WAS still violent and dangerous.

Link to comment
Share on other sites

Denying Woollard's renewal was arbitrary and capricious.

 

Maryland's reasoning behind not renewing Woollard's permit was twofold:

 

1) Threats have a limited shelf life, Woollard hadn't been attacked for several years, so there's no threat.

 

2)Woollard was attacked in his home, Woollard can carry w/o a permit, so he doesn't need a CCP (the assumption here is that Abbott would only attack Woollard again in Woollard's home)

 

It's hard to say what will happen now, it really all just depends on the Supreme Court.

 

Did the state give those reasons, and in writing? If so, that's a gift to Woollard.

 

1. The "actor" was obviously still dangerous to the family since he attacked his own parents and his ex wife.

 

2. SCOTUS has already said that the right to self defense is NOT limited to the home.

 

Sounds more and more like this is a good one for us to have go to SCOTUS.

Link to comment
Share on other sites

The matter of fact is that his now deceased son in law may not have made overt threats of violence after being released from prison but that the absence of any verbalized threat is not indicative of a threat (speaking in absolutes). He may have been a moron for violating his probation by burglarizing another home and assaulting a LEO, but that doesn't mean he's stupid enough to actually send Raymond Woollard a letter stating his intent to harm Mr. Woollard or a phone call. He was clearly dangerous, in prison or free, as indicated by his actions prior to his suicide. Attacking his ex-wife, attacking his parents, and then committing suicide. The suicide puts to rest the issue of mental stability as in he was not mentally stable, at all, and clearly VERY dangerous.

 

Gallagher's brief in opposition slays me, it truly does. As codified in § 5-306(a) of the Public Safety Article of the Maryland Code, permit will be granted to those who demonstrate a “good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Further, the State vaguely defines "apprehended danger" but rules out a "vague threat" or the possibility of becoming a crime victim when applicants supply "personal protection" as their "good and substantial reason." The state factors in, well, a bunch of subjective garbage and "'takes the applicant’s entire situation into account' when determining whether a good and substantial reason exists."

 

CA4 is chock full of liberal appointees and the three-judge panel that heard and decided Woollard is no exception. Judge King a Clinton appointee and Judges Diaz and Davis are Obama appointees. At one point during orals, Judge Davis actually said that the Court should, and I'm gonna cut right through the semantics, kick it up to SCOTUS because it's above the Court's pay grade. The panel then applied rational basis under the guise of intermediate scrutiny using a two-pronged test which is missing one of the two prongs. The second prong, "does it satisfy the applicable level of scrutiny" was only considered and that "the good-and-substantial-reason requirement burdens conduct falling within the scope of the Second Amendment’s protection." "With the scope of the requirement in mind, the court examined evidence presented by the State ... that the good-and-substantial-reason requirement protects citizens and inhibits crime in numerous ways, including by decreasing the availability of handguns to criminals via theft, lessening the risk that basic confrontations will turn deadly, and reducing escalations of routine police encounters with citizens into high-risk situations." In other words, law-abiding citizens with permits and concealed firearms are a danger to society. Therefore the "good and substantial reason" cuts down on guns on the street because criminals steal guns from permit holders (right outta the holster), permit holders might shoot criminals so we can't have that, and permit holders might shoot cops and we can't have that even though it RARELY happens. I was not aware that the Second Amendment has a clause in it requiring an American citizen (who is a veteran) be violently victimized by a criminal, attempting to kill said citizen in the commission of a forcible felony, then said scumbag going to prison for jacking a cop, threaten one's life upon his release from prison, all before being permitted to exercise the individual right to keep and bear arms.

 

In this beautifully crafted piece of garbage brief, Gallagher argues that SCOTUS should deny cert petition because "the law at issue does not ban the carry of handguns outside the home, deny individuals the use of handguns for self-defense, or limit individuals’ carrying of non-handgun firearms anywhere." Oh really? So, discretionary may issue, that's fine as long as you've survived a violent crime and someone is still leaving voicemails threatening to kill you. Alternatively, you can carry a taser or pepper spray, I mean that's not the crux of the argument here but hey whatever let's throw spaghetti at the wall and see what sticks, right? Oh, and "[T]he court of appeals’ decision upholding Maryland’s law is consistent with the decisions of each of the handful of other courts to have reviewed similar laws, with the sole exception of the district court decision it reversed, and with the decisions of other courts that have struck down substantially more restrictive laws." Striking down the un-cited but we all know what you're talking about State of Illinois flat-ban on carry, now that's OK, but don't you dare strike down a discretionary may issue system that requires applicants to survive a violent crime or be in an occupation requiring a concealed firearm and then we might grant a permit until the guy who tried to kill you stops writing you letters saying "I'm gonna kill you when I get outta the joint."

Edited by skinnyb82
Link to comment
Share on other sites

What a great reply Gura puts together for Woollard:

 

Woolard_reply_brief.pdf

 

We should all be thankful for Judge Posner, the ramifications of the Moore decision are wide-felt and Gura lets CA4 know how out of line they are...

 

I'm happy that he calls out CA4 for their trickery of using rational basis and calling it some level of scrutiny:

 

 

If this Court believes that this is an improper

way to evaluate laws burdening fundamental rights,

“it will need to say so more plainly.”

 

In their decision, CA4 placed the Second Amendment into some non-core-right-limbo, undeserving of strict scrutiny.

 

I certainly hope that there are at least 5 judges at the Supreme Court who will take the Woollard case - just for that reason alone. Courts can't shuffle the amendments around and put some in the "core" pile while putting others in the "non-core" pile to suit their predilection for judicial activism.

 

 

 

 

.

Edited by C0untZer0
Link to comment
Share on other sites

What a great reply Gura puts together for Woollard:

 

Woolard_reply_brief.pdf

 

We should all be thankful for Judge Posner, the ramifications of the Moore decision are wide-felt and Gura lets CA4 know how out of line they are...

 

I'm happy that he calls out CA4 for their trickery of using rational basis and calling it some level of scrutiny:

 

 

If this Court believes that this is an improper

way to evaluate laws burdening fundamental rights,

“it will need to say so more plainly.”

 

In their decision, CA4 placed the Second Amendment into some non-core-right-limbo, undeserving of strict scrutiny.

 

I certainly hope that there are at least 5 judges at the Supreme Court who will take the Woollard case - just for that reason alone. Courts can't shuffle the amendments around and put some in the "core" pile while putting others in the "non-core" pile to suit their predilection for judicial activism.

 

 

 

 

.

 

I sure do love reading Gura's stuff.

Link to comment
Share on other sites

Here we go, now the case can be distributed for conference next month.

 

Gura takes a swipe at the MSP....

 

"On the day Respondents filed their Opposition,

making light of Ray Woollard’s concerns about the

threat posed by his son-in-law, Kris Abbott, Abbott

proved Respondents wrong."

 

And....

 

"This case, like the Second Amendment’s core, is

not about hunting but about self-defense. And no one

would carry a rifle in downtown Annapolis for personal

protection against muggers and rapists. Normal

Americans would carry a handgun, 'the quintessential

self-defense weapon,' id. at 629, for that purpose.

 

Opposing this petition by claiming that recreational

shooting activities and long guns remain legal

is akin to defending a book ban against First Amendment

challenge by averring that flag burning and

nude dancing are not impacted."

Edited by skinnyb82
Link to comment
Share on other sites

Skinny -- I know you've answered this before so I apologize. But Gura states (below) there are several cases pending. Which one in your opinion do we want them to hear?

This petition is already one of three pending

this term challenging the Second Amendment’s

virtual repeal via “intermediate scrutiny.” See

Schrader v. Holder, No. 12-1443 (filed June 11, 2013);

Nat’l Rifle a**’n of Am., Inc. v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, No. 13-137 (filed

July 29, 2013). More are coming. Drake v. Filko, 2013

U.S. App. LEXIS 15635, 2013 WL 3927735 (3d Cir.

July 31, 2013); Kwong v. Bloomberg, 723 F.3d 160 (2d

Cir. 2013).

Link to comment
Share on other sites

Now that Moore has been taken off the table, Woollard is the best case IMO to go to SCOTUS. You have to remember too that the Supreme Court declined to hear Kachalsky - possibly because they would have rather have heard Moore

 

Kwong deals with the issue of fees, and Equal Protection. The EQ aspect wasn't actually part of the case but it was brought up in orals by one of the CA2 judges .

 

IMO, the 5 conservative judges on the Supreme Court were probably hoping for Moore where they could make a very general and broad ruling that would set the tone for Second Amendment rights in general that the lower courts could follow. The problem is, the activist judges don't follow the precedent so the Supreme Court become the the defacto court of fist resort for plaintiffs who are having their rights violated. And you have judges like Davis who said (at orals in Woollard) that maybe the circuit court should just rule on it, just to get it kicked up to SCOTUS to get a more definitive ruling than what they have in Heller and McDonald.

 

Hopefully both Woollard and Kwong will make it to SCOTUS.

Link to comment
Share on other sites

Umm they all address different issues except Drake. Kwong is fees to exercise a right. I can't recall the NRA one. The issue of intermediate scrutiny is the question really. Its a test applied by courts. In the case of firearms, does the statute or regulation balance the safety of the public with individual rights. Drake said it does because....well, the NJ permit system is "presumtively lawful" because it is a "long-standing tradition." That's not intermediate scrutiny. The Second Circuit in Kwong ruled that it is constitutional to charge a "nominal fee" (of $340 in NYC vs. $3-10 in other parts of NYS) to exercise a constitutional right. In other words, the equivalent of poll taxes are OK as long as they prohibit exercising RKBA. The court applied rational basis under the guise of intermediate scrutiny, and rational basis is the least rigorous of the three standards. Strict scrutiny is the most rigorous. Rational basis is basically "well the government can do it because they want to and can." Intermediate scrutiny asks whether the law being challenged furthers an IMPORTANT government interest in a substantially related manner...such as public safety or sentencing guidelines or whatever (how does charging $340 for a pistol permit further the government's interest in keeping the public safe? It doesn't thus it was a rational basis test). Strict scrutiny requires that a liberty interest be under review, that the government has a compelling (key word) interest to infringe such as national security, narrowly tailored law to accomplish the goal, and the law must accomplish its goal by "least restrictive means" (this is what bites the government). Hardly any laws that are challenged pass strict scrutiny.

 

Sent from my SCH-R530U using Tapatalk 2

 

 

Link to comment
Share on other sites

Rational Basis

 

http://en.wikipedia....al_basis_review

 

"Rational basis review" simply means that the enactment in question is "rationally related" to a "legitimate" governmental reason offered as its justification.

 

Karl Triebel used a rational basis argument for justifying Illinois total ban on carrying firearms. He said the state had an interest in keeping people from carrying firearms in public due to public safety concerns.

 

 

Strict Scrutiny

 

http://en.wikipedia....Strict_scrutiny

 

 

U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin.

To pass strict scrutiny, the law or policy must satisfy three tests: It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.

 

The courts should be applying strict scrutiny when it somes to the Second Amendment - a core constitutional right. But the courts do not. In Ezell, City of Chicago reference UCLA Professor Adam WInkler to imply that Ezell should not be evaluated with Strict Scrutiny, Here is the case docket:

 

http://ia700507.us.a...475.docket.html

 

If you look at response #52:

 

Ezell 52.pdf

 

 

the Supreme Court confirmed that the Second Amendment secures a fundamental right. McDonald, 177 L. Ed. 2d at 921 (plurality opinion) & 938 (Thomas, J., concurring). “[C]lassifications affecting fundamental rights are given the most exacting scrutiny.” Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation omitted). Under this analysis, the government carries the burden of proving the constitutionality of the challenged law. Citizens United v. FEC, 130 S. Ct. 876, 898 (2010).

 

The Seventh Circuit has applied intermediate scrutiny in Second Amendment cases, which

requires that there be a “strong showing” that the regulation is “substantially related to an

important governmental objective.” Skoien, at *10, and Defendant is correct that the circuit has

done so only in the dangerous persons categorical area, reserving other levels of scrutiny for other

types of Second Amendment cases.

 

Nonetheless, the City invokes the work of noted UCLA Law Professor Adam Winkler

relating to standards of review. This reliance is badly misplaced. Regardless of whether the cited

article truly reflects the City’s position, it predates Heller’s rejection of rational basis, and

McDonald’s finding that the Second Amendment secures a fundamental right, as well as the

Seventh Circuit’s opinions applying intermediate review.

 

 

So you have Heller and McDonald that sets out that the Second Amendment secures a FUNDAMENTAL right and rejects Rational Basis as a way of analyzing laws which potentially violate that fundamental right.

 

And we have courts like CA2 and CA4 who actually apply Rational Basis and then say that they've applied Strict Scrutiny - when they haven't.

 

One of the things that would be nice to have happen is SCOTUS slap down the circuit courts for this disingenuous trickery and say in no uncertain term that Rational Basis cannot be used to evaluate 2A cases.

 

It gets a little more complicated as to what level of scrutiny would be applied, as the CA7 brought up the possibility of "near-strict" scrutiny.

 

But still, I don't believe that any of these laws would withstand even Intermediate Scrutiny. In the bad decisions we've seen in 2A cases, the judges have applied Rational Basis.

 

 

 

.

Edited by C0untZer0
Link to comment
Share on other sites

It is my impression that the courts generally, other than the 7th, start out with the notion that the core 2A right is only for the home, and therefore they don't have to entertain strict scrutiny and they end up at renamed rational basis. If that incorrect reading of Heller gets cleared up by SCOTUS (making the core right of self defense with 2A more clear and stating its geographic scope--everywhere with allowance for some sensitive places) it would certainly help this problem. Adding smackdown for the openly recalcitrant courts and some bright lines for the lower courts in general would also help.
Link to comment
Share on other sites

Pardon my ignorance, but I'm assuming that means it was given to all the SCOTUS judges so they can look it over and then come to a decision on whether to hear it or not?

 

Sort of, it's there for their consideration but it doesn't necessarily mean they will actually look at it or consider it... Only time will tell...

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...