skinnyb82 Posted October 11, 2013 at 07:19 PM Share Posted October 11, 2013 at 07:19 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):Opinion.and.Order.Denying.States.MTD.DE57.pdf Docket:https://ia600603.us.archive.org/14/items/gov.uscourts.ilcd.52015/gov.uscourts.ilcd.52015.docket.html From pp 1-2: "This cause is before the Court on the Motion to Dismiss as Moot (d/e51) filed by Defendants Lisa Madigan and Hiram Grau. Defendants’ Motionis DENIED. A case or controversy still exists because Plaintiffs have notreceived the specific relief sought by Plaintiffs in the Amended Complaint. Furthermore, this Opinion does not address whether PlaintiffsMichael Moore, Charles Hooks, Peggy Fetcher, Jon Maier, SecondAmendment 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 theSeventh 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 Weaponsand Aggravated Unlawful Use of a Weapon statutes. The FirearmConcealed Carry Act simply amended those statutes to allow individuals toobtain a license that will permit such individuals to carry a concealed orpartially concealed, functional, and accessible pistol, revolver, or handgunoutside of the home. So, in Illinois, an individual can still be charged pursuant tosubsections 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 theIllinois legislature’s intent to remove only Illinois’ prohibition on thecarrying of concealed or partially concealed, functional, and accessiblepistols, revolvers, and handguns outside of the home. The plain languagealso demonstrates the legislature’s intent to continue enforcement of theUnlawful Use of Weapons and Aggravated Unlawful Use of a Weaponstatutes if an individual does not have a valid license under the FirearmConcealed Carry Act and if an individual carries weapons other than ahandgun, 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 thatShe 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 that720 ILCS 5/24-1(a)(4) and (10) and 720 ILCS 5/24-1.6, which banned thecarrying of stun guns, tasers, and all firearms outside of the home, wereunconstitutional as applied. Yet, in the Firearm Concealed Carry Act, thelegislature only provided for the carrying of pistols, revolvers, andhandguns outside of the home. The legislature’s actions clearly did notaddress 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 qualifiedindividuals 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 ofconcealed or partially concealed, functional, and accessible pistols,revolvers, and handguns in public. In the Amended Complaint, Plaintiffschallenged the constitutionality of the Illinois statutes that barred privateindividuals from carrying any type of firearm in public. Additionally, as of yet, no procedures are in place for qualifiedindividuals to apply for and obtain a valid concealed carry license under theFirearm Concealed Cary Act. As a result, not one person has received therelief Plaintiffs sought in the Amended Complaint, namely, an opportunityto carry a concealed or partially concealed firearm outside of the home.Indeed, the continued inability to obtain a valid permit license under theFirearm Concealed Carry Act is the basis at issue in plaintiffs’ appeal in thiscase’s companion case out of the Southern District of Illinois. See Shepardv. Madigan, 132661. Because issues raised in Plaintiffs’ AmendedComplaint remain in controversy, the Court must deny Defendants’ Motionto 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 Circuitin 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. Link to comment Share on other sites More sharing options...
TyGuy Posted October 11, 2013 at 07:26 PM Share Posted October 11, 2013 at 07:26 PM Errrrrm, what? I'm confused by the separate nature of these cases now. Link to comment Share on other sites More sharing options...
blazzinbird Posted October 11, 2013 at 07:29 PM Share Posted October 11, 2013 at 07:29 PM So Lisa and Hiram got slapped around in court today huh Link to comment Share on other sites More sharing options...
cls74 Posted October 11, 2013 at 07:30 PM Share Posted October 11, 2013 at 07:30 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? Link to comment Share on other sites More sharing options...
supprmann Posted October 11, 2013 at 07:40 PM Share Posted October 11, 2013 at 07:40 PM Get ma inhaler!!!!!! I can't BREEEEVE!!!!!! Link to comment Share on other sites More sharing options...
skinnyb82 Posted October 11, 2013 at 07:49 PM Author Share Posted October 11, 2013 at 07:49 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. Link to comment Share on other sites More sharing options...
skinnyb82 Posted October 11, 2013 at 07:52 PM Author Share Posted October 11, 2013 at 07:52 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. Link to comment Share on other sites More sharing options...
BrowningHP Posted October 11, 2013 at 08:00 PM Share Posted October 11, 2013 at 08:00 PM sweet. this might lead one to wonder if this will have any bearing on the as-yet unreleased decision in the appellate court? Link to comment Share on other sites More sharing options...
BillyP Posted October 11, 2013 at 08:01 PM Share Posted October 11, 2013 at 08:01 PM Wondering if this opinion has Posner redrafting his original opinion. I sure hope so. Link to comment Share on other sites More sharing options...
BrowningHP Posted October 11, 2013 at 08:02 PM Share Posted October 11, 2013 at 08:02 PM Wondering if this opinion has Posner redrafting his original opinion. I sure hope so. exactly - I wonder if these judges talk? Link to comment Share on other sites More sharing options...
sctman800 Posted October 11, 2013 at 08:03 PM Share Posted October 11, 2013 at 08:03 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. Link to comment Share on other sites More sharing options...
XtremeRevolution Posted October 11, 2013 at 08:05 PM Share Posted October 11, 2013 at 08:05 PM And would you check that out...she was appointed by obummer too! Sent from my SGH-T999 using Tapatalk 2 Link to comment Share on other sites More sharing options...
TyGuy Posted October 11, 2013 at 08:07 PM Share Posted October 11, 2013 at 08:07 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: Link to comment Share on other sites More sharing options...
TyGuy Posted October 11, 2013 at 08:11 PM Share Posted October 11, 2013 at 08:11 PM And wouldn't the appeal by right go to CA7? Link to comment Share on other sites More sharing options...
RockerXX Posted October 11, 2013 at 08:12 PM Share Posted October 11, 2013 at 08:12 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... Link to comment Share on other sites More sharing options...
borgranta Posted October 11, 2013 at 08:15 PM Share Posted October 11, 2013 at 08:15 PM If you thought Posner was angry during shepard he will likely be twice as much if the state appeals. Link to comment Share on other sites More sharing options...
Phatty Posted October 11, 2013 at 08:15 PM Share Posted October 11, 2013 at 08:15 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. Link to comment Share on other sites More sharing options...
cm.stites Posted October 11, 2013 at 08:22 PM Share Posted October 11, 2013 at 08:22 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. Link to comment Share on other sites More sharing options...
cm.stites Posted October 11, 2013 at 08:23 PM Share Posted October 11, 2013 at 08:23 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. Link to comment Share on other sites More sharing options...
Phatty Posted October 11, 2013 at 08:27 PM Share Posted October 11, 2013 at 08:27 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. Link to comment Share on other sites More sharing options...
RockerXX Posted October 11, 2013 at 08:28 PM Share Posted October 11, 2013 at 08:28 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... Link to comment Share on other sites More sharing options...
Phatty Posted October 11, 2013 at 08:34 PM Share Posted October 11, 2013 at 08:34 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. Link to comment Share on other sites More sharing options...
cm.stites Posted October 11, 2013 at 08:35 PM Share Posted October 11, 2013 at 08:35 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. Link to comment Share on other sites More sharing options...
Phatty Posted October 11, 2013 at 08:48 PM Share Posted October 11, 2013 at 08:48 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. Link to comment Share on other sites More sharing options...
ragsbo Posted October 11, 2013 at 08:52 PM Share Posted October 11, 2013 at 08:52 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 Link to comment Share on other sites More sharing options...
Phatty Posted October 11, 2013 at 09:02 PM Share Posted October 11, 2013 at 09:02 PM So bottom line is what? Sounds good but I have had my hopes up to many times just to have them shot down againBottom 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. Link to comment Share on other sites More sharing options...
McCroskey Posted October 11, 2013 at 09:17 PM Share Posted October 11, 2013 at 09:17 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. Link to comment Share on other sites More sharing options...
bob Posted October 11, 2013 at 10:23 PM Share Posted October 11, 2013 at 10:23 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. Link to comment Share on other sites More sharing options...
spec5 Posted October 11, 2013 at 10:50 PM Share Posted October 11, 2013 at 10:50 PM So bottom line is what? Sounds good but I have had my hopes up to many times just to have them shot down againBottom 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!!!! Link to comment Share on other sites More sharing options...
transplant Posted October 11, 2013 at 11:04 PM Share Posted October 11, 2013 at 11:04 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 againBottom 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? Link to comment Share on other sites More sharing options...
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