Drake v. Jerejian

[C0untZer0]

Kind of off topic but it is amazing the lengths Second Amendment opponents will go to in the info wars - it is more than just spin doctoring, it is closer to flat out lying. On Lee Goodman's "Stop Concealed Carry" Facebook page he created a post which said:

 

Supreme Court declines to hear challenge to N.J. gun law

"The U.S. Supreme Court denied Monday a request to hear a gun-related case challenging New Jersey’s mandate that citizens must show a “justifiable need” to carry a gun in public for protection"

That is not what happened.

I still think Woollard was the best case because he was such a good plaintiff and the decision to not renew his CCW was illogical, arbitrary and capricious. And Judge Benson Legg created a very well written opinion that was squarely aimed at the judges on CA4. it was a strong argument and actually King and Davis never addressed Legg's opinion. They just made up their tooty-fruity explanation of how they used rational basis but really it was scrutiny, (because they said it was scrutiny). But that is water under the bridge now...

Drake is what we have now.

[chislinger]

Looks like we'll have to wait another week, it doesn't appear on today's orders.

 

http://www.supremecourt.gov/orders/courtorders/042814zor_6k47.pdf

[C0untZer0]

[skinnyb82]

Yup Drake was relisted for this week. Wonder if they're just tired of cert petitions where the first issue is "Does the scope of thr Second Amendment extend outside the home?" and the Justices are....well who knows.

 

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[ghk012]

at least it was re-listed. Todd said he thought we would hear something today or last week. I hope this is not a negative indication that it has been postponed. Thanks to everyone for keeping us up to-date on the actions.

[skinnyb82]

They did grant cert in a case which was relisted once. Yates, commercial fisherman (petitioner) who was charged with a Sabanes-Oxley violation for throwing undersized grouper overboard.

 

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[TyGuy]

Sabanes-Oxley?

[skinnyb82]

Yeah SOX, was passed after Enron and WorldCom, jacked up financial reporting requirements (and compliance costs). Sorry it's Yates v. U.S....

 

"8ssue: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose."

 

18 USC Sec. 1519 is the SOX section on record-keeping.

 

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[pilotguy]

Scotusblog has noted that some cases have been re-listed several times - one was re-listed 14 times! So as they say we have to just wait "two more weeks..."

[ryan_j]

Relisting is a very good sign.

 

Heller was relisted before it was granted.

 

Most of the other cases granted this term were relisted at least once.

 

My bias notwithstanding (I am from NJ) I think that Drake is the best case, probably apart from Moore or maybe Peruta. I say Moore because Moore was a straight "2A outside the home" case and Peruta had a really wonderful, well researched decision from Judge O'Scannlain that adhered very closely to Heller. Paul Clement is also the counsel and the court loves to hear from Paul Clement.

 

But Drake is good for a number of reasons:

Despite being "may-issue" NJ has the same situation Illinois had before it got its carry law - close to zero actual private citizens legally carrying. "Carry permits" were mostly security guards. Retired law enforcement could get a permit to carry or carry under LEOSA.

 

The third circuit decision by Judge Aldisert was just so utterly activist and picked and chose just one tiny piece of Heller.

 

Judge Hardiman in the 3rd circuit provided a very good dissent that adhered to Heller.

 

We now have a split as wide as the grand canyon because of Peruta, (and Richards and Baker), Moore and Aguilar.

 

The case is "ripe" meaning the lower courts have weighed in.

 

Finally, the plaintiffs are people who would have gotten carry permits in other states. For example, lead plaintiff John Drake services ATMs and carries sometimes up to $80,000 in cash in his vehicle to restock the ATMs. He would have likely gotten a permit in MD or NY. The others are part time law enforcement and people who handle valuables, as well as I think one guy who is just a regular citizen, plus the entire class of the members of ANJRPC (myself included) and SAF.

 

Of course, I would have liked Woollard to get a grant, as this issue would have been resolved sooner. But we have Drake, and Drake I think has substantially more in its favor.

 

I predict we will get a grant soon. If not at this conference, another one before the end of this term.

Edited April 29, 2014 at 03:35 PM by ryan_j

[skinnyb82]

I'm wondering what percentage of the cert petitions distributed for conference are on the "discuss list." Clearly Drake is on that list. The whole cert pool practice is somewhat disturbing, dumping the petitions on clerks to basically summarize and decide which petitions are worthy of granting certiorari and which are not. Since clerks are randomly assigned, it could come down to a clerk's ideology, whether the petition makes it onto the discuss list or dead list. Alito doesn't participate in the cert pool, apparently he doesn't trust other Justices' clerks. For all we know, clerks for Sotomayor or Ginsburg or any of the four liberal Justices could have been assigned to draft the memos for the Woollard and Kachalsky conferences.

 

Aldisert is ancient, he had his mind made up before the appellate brief was even filed. LBJ appointee.... During orals, he was guiding the NJ AG or whoever was arguing the case and she still couldn't answer some of the questions so he began answering them for her. The fact that judges like him exist is a travesty in and of itself. Judge Hardimann didn't just draft a dissent, it's the most scathing dissent I've seen in a case like this. He ripped apart the NJ SA's arguments during orals, got her to deny that the goal of the law is to keep guns off the streets even though Hardimann stated that it is inescapable. His dissent basically dismantled Aldisert and Stark for cherrypicking and ignoring anything that didn't fit their agenda.

 

Judge Stark seemed like he was seriously leaning "our way." He cornered the NJ SA and almost got her to admit that the State only recognizes "in the home" with respet to the scope of the Second Amendment. Then, when she tried to wriggle out, she ultimately admitted that the purpose of the "justifiable need" standard is to "keep handguns off the streets." Then falls back on the "public safety" excuse errrr argument. Toward the end of the State's presentment, the SA actually stated that "the Second Amendment could result in people being seriously harmed." Aldisert stated that "the concept of 'justifiable need' is without standard" but seemed to be irritated most by the SA's gross incompetence and lack of preparation. Not the facts of the case itself. The Court gave the State 10 days to file a supplemental brief in order to answer the questions which the SA could not answer during orals, Gura was given an opportunity to file a rebuttal but it wouldn't matter to Aldisert. I mean...seriously? Basically saying "Just get back to us." Stark seemed like he would vote with Hardimann but maybe Aldisert pulled some crap that he can get away with because he's been on the Court for 40 years and, with that, comes influence and respect.

 

I'm guessing Judge Hardimann's dissent caught the Justices' eyes. Something like that usually does, although I would have loved to have seen a dissent penned by Kozinski in Peruta if/when it is reheard en banc (or has that ship sailed, I haven't kept track) and the panel reversed. I'm pretty optimistic about this one. Fingers crossed.

 

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[C0untZer0]

Some of these circuit judges let the government get away with all kinds of things, or in some cases are inserting their own irrelevant thoughts.

 

In Kwong, Judge Walker said that the fee keeps the public safe.

 

THIS WAS NEVER PART OF THE CASE !

 

Bloomberg (NY City) never argued that the fee was for public safety. Walker just came up with that himself !

 

If the fee really was merely an impediment to gun ownership in the name of public safety, the law should (and would) be struck down!

 

http://www.ramblingsonappeal.com/2013/07/unpacking-kwong-v-bloomberg-how.html

 

After Walker introduced this to the Kwong v Bloomberg case, Susan Paulson, lead counsel for New York City, remarked in a public statement that she was pleased with the Second Circuit’s decision because it “properly recognized that the City’s licensing process is designed to promote public safety and prevent gun violence.”

 

I listed to orals, and I looked at the filings and every single document in the case and this notion of justifying the fee in the name of public safety was never talked about by the defendants.

[Hipshot Percussion]

I learn more stuff on this forum...

[Sigma]

I wonder if they are tired of hearing from Gura on 2nd amendment cases

[RockerXX]

I wonder if they are tired of hearing from Gura on 2nd amendment cases

 

Well the solution there is simple, answer the questions (or more simply just confirm and broaden the scope of their own ruling) being asked of them by Gura, once the SCOTUS lays down the law once and for all Gura won't have a need to keep taking cases to them...

 

I still believe that even though the SC Judges know full well what the 2nd should cover based on it's defined purpose, they are reluctant to come out and say it, as it destroys long standing tradition and precedents and to be blunt "upsets" and "angers" the other branches of the government...

[C0untZer0]

I wonder if they are tired of hearing from Gura on 2nd amendment cases

 

 

I've only ever heard this idea put forth on this forum.

 

For decades, the NRA-ILA prevented most of the most drastic attempts to curtail Second Amendment rights, and when progress was made, it was made in the state legislatures, thanks in large part to the efforts of the NRA. And then all of a sudden the Heller decision comes down, which completely changed gun rights in this country.

 

In 2002 Robert Levy from the Cato institute started looking for plaintiffs to challenge gun bans on the basis of the Second Amendment. He found a number of plaintiffs to challenge DC's gun ban, including Dick Heller and George Lyon. Both George Lyon and Dick Heller had contacted the NRA for help in filing a lawsuit against Washington DC. I don't know the outcome of Lyon's request but Dick Heller was turned down by the NRA.

 

So all of a sudden, Heller prevails and it completely changes the landscape for gun rights in America. And in a way, the NRA was eclipsed as the the organization that did the most for Second Amendment rights. All of a sudden it was through the courts, not through legislative action that the biggest gains were being made. This should seem familiar to those of us in Illinois because this is exactly what happened in Illinois.

 

The NRA really came to the litigation game a little late. And since then there have been differences of opinion in the best strategy. Alan Gottlieb and the Second Amendment Foundation has taken the "throw spaghetti at the wall" approach while the NRA (once it got into the game) tried to carefully pick good plaintiffs and promising cases.

 

I don't think it is a case where Alan Gura rubs the Justices the wrong way as much as he rubs people in the NRA the wrong way.

[skinnyb82]

For a look inside of the insanity of New Jersey's permit licensing scheme, look no further than "In the Matter of the Application of Michael McGovern" where the Jersey City Police Department was actually in violation of state law by mandating applicants fill out additional paperwork not required under New Jersey law (Yes, REALLY) and when Mr. McGovern told the Jersey City PD to pound sand, here's what happened.

 

His application was denied due to the fact that he refused to fill out additional paperwork beyond what the State requires of applicants (which, according to what I've read, is a "crapload").

 

"In addition to the State Police forms, McGovern provided two completed Jersey City forms entitled 'Endorsement and Reference Letter,' which were executed by two individuals who know McGovern and attested to his good character. McGovern completed parts of and signed, but expressly declined to complete other parts of, a Jersey City Police Department form entitled 'Firearms Applicant Questioner' [sic]. He also declined to complete and sign three other forms that the Jersey City Firearms Licensing Unit had provided to him as part of the application."

Is this a job application or an application for a permit to OWN two handguns, not just carry, OWN. "References" gimme a break. Sounds like what Canada does. Oh, and he failed to complete some mental health paperwork, also failed to answer a few questions pertaining to mental health as well. And they misspelled "Questionnaire" on an official form. Anyway,

 

"Instead, McGovern included with his application a two-page typed letter addressed to the Jersey City Police Chief explaining his objections to the additional Jersey City forms and his position on their legal impropriety. Along with his letter, McGovern attached a fifteen-page appendix and a copy of the United States Supreme Court's Second Amendment decision in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). By another letter to the Police Chief dated November 2, 2011, McGovern acknowledged that he was scheduled for an appointment to provide his fingerprints to the police department, and he again referenced his objections to the additional Jersey City forms."

No comment required *grin*

 

So a few months passed...

 

"Jersey City did not act on McGovern's handgun permit application within thirty days, as required by N.J.S.A. 2C:58-3(f). Rather, five months after McGovern filed his application,

the Firearms Licensing Unit sent McGovern a form notice dated March 5, 2012, by which it requested additional information."

Yada Yada Yada they used arrests in Florida, not convictions, arrests, to deny his application because the cases have no dispositions. OK let's see...arrests, but no disposition hmmm....well they were also when he was an undergraduate in college, "more than ten years ago" (in 2000, 2001, and 2002, never convicted), the Jersey City PD noted in its letter:

 

"There are no final dispositions listed for these offenses. You will have to get certified dispositions from the Courts involved as to the outcome of these charges.

This department also has a concern over your actions during the incidents. We are asking for a written explanation as to the incidents and why you should

not be denied a firearms permit."

 

He could've provided them with dispos for all of them but he stated that he didn't believe it was his obligation to do the work of the police department to establish that none of his arrests resulted in convictions. This kinda p***** off the Jersey City Chief of Police...enough to deny his application under the "good repute" standard, stating that he has a criminal record consisting of three (3) arrests (he does not have a criminal record...arrests, convictions, let's not split hairs) and he is a threat to public safety because he was arrested three times in 10 years (not once in 9 years preceding the date of his application).

 

Petition for judicial review was filed. McGovern subpoenaed the Jersey City Chief of Police who ignored the summons and sent a lackey in his stead. State law mandates that review occur within 30 days of denial so...October...March...yeah that's five months so we have another violation of NJ law. The Law Division judge proceeded to basically tell McGovern to sit down and shut up, would not allow him to mount any kind of case whatsoever, and denied his application because his three arrests, stating "the lack of cooperation evidences Mr. McGovern's disregard for the welfare of others as well as the legal system in general" and that his behavior signifies a certain threat to public safety. The appellate court turned the denial on its head because of Jersey City's above and beyond the absurd into "are you ... kidding me?" citing a case in which the New Jersey Supreme Court called NJ's gun control framework "a 'careful grid' of regulatory provisions," (you say "regulation," I say...uh forget it) and remanded it. I mean it's not like his permit application will be granted...pfft heh.

 

Have fun reading this one as this is one of those "it could be worse" type things.

 

https://www.judiciary.state.nj.us/opinions/a1282-12.pdf

[Mack]

Michael McGovern should get his permit now, the thing is that it is not a carry permit, it is a permit to own a handgun. There is some good information on that case with some commentary in the comments section apparently by Mr. McGovern here: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/28/new-jersey-appellate-court-on-handgun-licenses/

 

I pray the Drake case is accepted, my theory based on nothing, is that some justices on the court want to take Drake but they are searching for a majority in support before they take it. Thus if they choose not to grant cert then I believe that that is an indication that there aren't five justices who would likely support the right to carry outside the home.

Edited April 30, 2014 at 02:59 PM by Mack

[C0untZer0]

I'm hoping that the only reason SCOTUS didn't take Woollard was because the issue hadn't been fully baked in the circuit courts yet.

 

But why couldn't they have just listed and re listed Woollard until Peruta and Drake were resolved at the circuit level?

 

And for that matter, maybe they will re list Drake until Peruta comes to resolution at CA9.

[miztic]

I thought Peruta was a done deal already? the sheriff was ordered to issue carry licences with "self defense" as a good cause?

[RockerXX]

At the end of the day IMO it really doesn't matter all that much what case the SCOTUS takes, if they are inclined to support the position they will support it, and if they are inclined to 'broaden' it they will word their decision as such, and if they plan to not support the position they will follow through and not support, regardless of what case they are ruling upon...

 

I do agree that the questions asked in some cases are better for us, but at the end of the day we are never going to get the single sweeping case that ends the debate, it's always going to have to be chiseled away at...

[miztic]

At the end of the day IMO it really doesn't matter all that much what case the SCOTUS takes, if they are inclined to support the position they will support it, and if they are inclined to 'broaden' it they will word their decision as such, and if they plan to not support the position they will follow through and not support, regardless of what case they are ruling upon...

 

I do agree that the questions asked in some cases are better for us, but at the end of the day we are never going to get the single sweeping case that ends the debate, it's always going to have to be chiseled away at...

 

Yep, assuming 'outside the home' is included in the fundamental right, the next lawsuits will probably cover outrageous fees and training requirements. or excessive 'no carry' zones.

[bob]

I do agree that the questions asked in some cases are better for us, but at the end of the day we are never going to get the single sweeping case that ends the debate, it's always going to have to be chiseled away at...

What he said. There is at least of decade of legal work to deal with the debacle of the FCCA.

 

People want to have something happen quick, but the courts do not work like that.having a horribly written law that has major parts of it that no one knows what they mean makes it even worse.

Edited April 30, 2014 at 07:05 PM by bob

[C0untZer0]

I agree.

 

It just changes the direction anti-gunners take.

 

They will push mag cap limits until they can mandate guns have no more than 3 rounds, and if they can reduce it further than that - they will. They will mandate smart guns even if they barley work and are only chambered in .22LR - unless the courts stop them.

 

I don't think Peruta is done yet. There is a motion to grant the AG of CA intervenor status. And there is still en banc review waiting in the wings.

 

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722

Edited April 30, 2014 at 07:06 PM by C0untZer0

[ryan_j]

Michael McGovern should get his permit now, the thing is that it is not a carry permit, it is a permit to own a handgun. There is some good information on that case with some commentary in the comments section apparently by Mr. McGovern here: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/28/new-jersey-appellate-court-on-handgun-licenses/

 

I pray the Drake case is accepted, my theory based on nothing, is that some justices on the court want to take Drake but they are searching for a majority in support before they take it. Thus if they choose not to grant cert then I believe that that is an indication that there aren't five justices who would likely support the right to carry outside the home.

 

McGovern's permit is a permit to purchase long guns. We do not have FOIDs like Illinois. We have Firearm Purchaser ID cards or FPIDs that you need to purchase long guns. To purchase handguns, one needs a permit to purchase a handgun which is valid for 90 days. You apply for one permit to purchase each gun.

 

McGovern's issue was Jersey City PD who put extra illegal forms to add to the FPID process. By state law, municipalities can only request three forms - Application form, release of mental health records, and State Bureau of Identification background check OR fingerprints done on a livescan machine.

 

These are the ridiculous illegal extra forms he had to complete.

 

http://www.scribd.com/doc/220791124/Example-of-Jersey-City-NJ-s-Illegally-Added-Gun-Forms

 

Those are in addition to the standard forms which everyone has to complete:

 

http://www.njsp.org/info/pdf/firearms/sts-033.pdf

 

http://www.njsp.org/info/pdf/firearms/sp-066.pdf

Edited April 30, 2014 at 07:48 PM by ryan_j

[ryan_j]

I don't think Peruta is done yet. There is a motion to grant the AG of CA intervenor status. And there is still en banc review waiting in the wings.

 

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722

 

Peruta is not 100% final yet but it is published and precedential.

 

The AG Kamala Harris (Obama's friend) requested to intervene but that hasn't been decided yet. Sheriff Gore from SD has refused to respond and is off the case. The case hasn't gone en banc yet, but it may do so.

Edited April 30, 2014 at 07:50 PM by ryan_j

[colt-45]

so what is the good side of these cases?

[C0untZer0]

Well the opinion in Peruta was very well written, and written I think with an eye to the Supreme Court Justices (not that I think it will matter much)

[s0beit]

http://live.scotusblog.com/Event/Live_blog_of_orders_and_opinions__May_5_2014/115013621

And it's gone.

[Patriots & Tyrants]

I am really glad we got what we got now; sounds like the SCOTUS has shifted for some unknown reason against gun owners.