Herrera v. Raoul (1:23-cv-00532)

[MRE]

On 4/28/2023 at 11:21 PM, Euler said:

On April 26, plaintiffs appealed the denial of an injunction to the 7th Circuit, which has (expeditiously) assigned case # 23-1793 (docket) to the appeal.

 

It seems a bit moot after the Barnett injunction.

 

I’ve wondered for a while now if the 7th Circuit denied the first appeal, without comment, as more of a procedural matter, knowing all of the other cases would be making their way up to them soon with a more thorough record. In other words, I don’t give much weight to their previous refusal to issue an injunction (and Judge McGlynn obviously didn’t, either).  I’m not saying it’s guaranteed they will side with McGlynn, that may depend entirely on who hears the case. 

[Euler]

On May 5, the court ordered plaintiffs/appellants and defendants/appellees to respond to the court on the proposal to combine Herrera and Barnett at the appellate level. The response is due May 11.

[Euler]

On 5/5/2023 at 8:30 PM, Euler said:

On May 5, the court ordered plaintiffs/appellants and defendants/appellees to respond to the court on the proposal to combine Herrera and Barnett at the appellate level. The response is due May 11.

 

On May 8, Herrera filed a response opposing consolidation.

[MrTriple]

On 5/8/2023 at 4:03 PM, Euler said:

 

On May 8, Herrera filed a response opposing consolidation.

You may have already answered my question, but is the consolidation for purposes of a preliminary injunction only or for purposes of the merits hearing(s) as well?

[Euler]

On 5/8/2023 at 5:26 PM, MrTriple said:

You may have already answered my question, but is the consolidation for purposes of a preliminary injunction only or for purposes of the merits hearing(s) as well?

 

I think a couple people have answered the question already. None of the recent cases are anywhere beyond district court. Only appeals for injunctions are at the appellate and supreme level.

[Euler]

Bevis and Herrera have been consolidated into Barnett at the appellate level regarding appeals on a preliminary injunction, with a hearing set for June 29.

 

Edited May 12, 2023 at 11:23 PM by Euler

[Tvandermyde]

I'm still a bit confused. Which is the lead case -- Barnett?

[gunuser17]

I don't expect that there is a "lead" case.  The cases are consolidated for the appeal and the parties usually work out between them how to split the briefing (if possible) as requested by the court.  They usually also work out how to divide the oral argument time.  This is different from how a district court judge might consider cases consolidated for discovery purposes.

 

[Upholder]

Brief and Short Appendix of the City of Chicago and Superintendent of Police:

 

https://drive.google.com/file/d/1frcXXkdqIPKKxIaoFfDjWmcbpRgBZN73/view

[Upholder]

Quote

ARGUMENT

• I. HERRERA IS NOT LIKELY TO SUCCEED ON THE MERITS
  • A. Assault Weapons And High-Capacity Magazines Are Not In Common Use For Self-Defense
  • B. Assault Weapons And High-Capacity Magazines Are Dangerous And Unusual.
    • 1. AR-15s are “like” M-16s and thus “may be banned” under Heller.
    • 2. Assault weapons and high-capacity magazines are dangerous and unusual because of their extraordinary lethality.
    • 3. Assault weapons and high-capacity magazines pose extraordinary risks to law enforcement.
  • C. The City’s Ordinance Is Consistent With The Nation’s Historical Tradition Of Firearm Regulation.
    • 1. The nation has a longstanding tradition of regulating weapons that threaten the public peace.
    • 2. The City’s ordinance addresses dramatic technological changes and unprecedented societal concerns.
    • 3. The City’s ordinance imposes a comparable burden on the right of armed self-defense, and is comparably justified.
  • II. HERRERA WILL NOT SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION.
  • III. THE BALANCE OF EQUITIES FAVORS DEFENDANTS AND THE PUBLIC INTEREST.

 

[Upholder]

Quote

SUMMARY OF ARGUMENT

_______

Herrera is not entitled to a preliminary injunction. He is not likely to
succeed on the merits because the assault weapons and high-capacity magazines
banned under the City’s ordinance are not protected by the Second Amendment. At

the outset, the magazines do not even constitute “arms,” but are instead accessories.
In addition, assault weapons and high-capacity magazines are not in common use
for self-defense. They are owned by a small percentage of Americans, are not
suitable for self-defense, and are far too lethal.

 

Assault weapons and high-capacity magazines are also dangerous and
unusual. The AR-15 rifles Herrera wishes to keep in his home are no different from
M-16 rifles, which may be banned. AR-15s were originally developed for military
use, and the civilian versions in circulation today are, if anything, even deadlier
than those used on the battlefield. Assault weapons and high-capacity magazines
are extraordinarily lethal, disproportionately used in mass shootings, and cause an
outsize number of fatalities and serious injuries. They also pose exceptional risks to
law enforcement officers who are not adequately protected from the extreme fire
power of assault rifles and who face challenges planning and securing large events.

 

Again, claiming that AR-15s and M-16s are the same, but at the same time, AR-15s are "even deadlier" in the same paragraph.

Edited June 5, 2023 at 09:34 PM by Upholder

[Upholder]

They make this amazing claim:

Quote

High-capacity magazines are also not commonly used, as the firearms most
commonly owned by Americans – many types of handguns and rifles – “do not
accommodate” extended magazines.

 

[Upholder]

Quote

Critically, the enormous fire power of assault weapons also creates serious
safety concerns, particularly when compared to a handgun. A handgun bullet “goes

in like a nail” and produces a wound akin to “a stabbing with a bullet.” R. 60-4
¶ 109 (quotation omitted). For this reason, a handgun wound is “generally
survivable unless the bullet penetrates a critical organ or major blood vessel.”
R. 52-10 ¶ 38. Assault weapon injuries, on the other hand, are physically
devastating and often lethal, R. 52-10 ¶¶ 31-36 – “the payload of kinetic energy”
from an AR-15 bullet “rips open a cavity inside the flesh,” R. 52-6 ¶ 34, “as if you
shot somebody with a Coke can,” R. 60-4 ¶ 109 (quotations omitted).

 

AR-15's apparently are like shooting someone with a Coke can... but being shot with a handgun is like being "stabbed with a bullet".

 

I don't even know where to start.

[Glock43]

On 6/5/2023 at 4:40 PM, Upholder said:

 

AR-15's apparently are like shooting someone with a Coke can... but being shot with a handgun is like being "stabbed with a bullet".

 

I don't even know where to start.

 

[mab22]

On 6/5/2023 at 5:45 PM, Glock43 said:

 

🤓 Freeze the water bottles!

[Upholder]

Opening Brief and Short Appendix of Defendants-Appellees Cook County, Toni Preckwinkle, Kimberly M. Foxx, and Thomas J. Dart

 

https://drive.google.com/file/d/1bYRbeWjKX9ok5YPB5vSVcuAmi4fqbiMz/view

 

 

Quote

ARGUMENT

• I. Herrera is Not Likely to Succeed on the Merits of his Second Amendment Claim.
  • A. Assault Weapons and Large-Capacity Magazines are Not “Arms” For Purposes of the Second Amendment.
    • 1. Neither assault weapons nor large-capacity magazines are commonly used for lawful purposes.
    • 2. Assault weapons and large-capacity magazines are unusually “dangerous”.
• II. Bans on Assault Weapons and Large-Capacity Magazines Are Compatible With This Nation’s History and Traditions.
  • A. Gunpowder Regulations Demonstrate A Longstanding Tradition of Regulating Weapons Responsible for Mass Casualty Events.
  • B. Regulations on Assault Weapons and Large-Capacity Magazines Are Constitutional Under Bruen’s Nuanced Approach.
  • C. Weapons in Common Use for Criminal Purposes May Be Regulated
  • D. Herrera’s View of History is Wrong
• III. Bruen Does Not Abrogate This Court’s Decisions in Friedman and Wilson

 

 

They do provide a source for the moronic "Coke Can" vs. "stabbing with a bullet" quote, which they also use:

Quote

In the
words of the trauma surgeon and Navy captain, Dr. Peter Rhee, who treated
Representative Gabby Giffords after she was shot, “A handgun [wound] is simply
stabbing with a bullet. It goes in like a nail. [But with the AR-15,] it’s as if you shot
somebody with a Coke can.” R. 60-4 at ¶ 109.

 

 

They both misconstrue and attempt to shift the burden of the "Common Use" test, claiming that it is the Plaintiff that must show that it is in Common Use and not the Defendant's burden to show that it is not.  They also (as shown in the summary) believe the Friedman is still good law:

Quote

Thus, whether a particular use of a desired
weapon is “common” turns on whether the plaintiff can show that the use is
“widespread” or “prevalent,” “occur frequently or habitually,” or is “most widely
known.” WEBSTER’S II NEW COLLEGE DICTIONARY 226 (2001) (internal capitalization
omitted). Meanwhile, this Circuit has acknowledged prevalence alone does not
preclude regulation. Friedman, 784 F.3d at 409 (explaining that the Tommy gun
“was all too common in Chicago” before it was federally prohibited).

 

 

 

Edited June 6, 2023 at 05:05 PM by Upholder
formatting - Removed [s] from end of occur in the final quote, broke the formatting

[Flynn]

Quote

A handgun [wound] is simply stabbing with a bullet. It goes in like a nail. 

 

You should see my kitchen after trying to 'stab' a watermellon with a nail...

 

 

 

[Upholder]

Herrara's filing in the 7th Circuit on 6/19 was rejected today with a notice of deficiency:

 

https://storage.courtlistener.com/recap/gov.uscourts.ca7.48904/gov.uscourts.ca7.48904.57.0.pdf

 

Quote

A Disclosure Statement or Amended Disclosure Statement is required for every attorney listed
on the front cover . See Fed. R. App. P. 26.1, 28(a)(1), and 28(b).

The resubmission will be deemed timely if the electronic filing is accomplished within two (2)
days of this notice (by 11:59 pm on the second day of this notice).

 

[JTHunter]

On 6/6/2023 at 5:02 PM, Flynn said:

 

You should see my kitchen after trying to 'stab' a watermellon with a nail...

 

 

 

 

Impressive results.  It figures that the "hydrostatic pressure" of the 3 larger calibers would be the most effective.

[Flynn]

On 6/20/2023 at 2:27 PM, JTHunter said:

 

Impressive results.  It figures that the "hydrostatic pressure" of the 3 larger calibers would be the most effective.

 

Yep, growing up and plinking with 22LR I was always impressed at how much impact and destruction they did to 'liquid' filed items and even more so as the calibers got bigger.

 

Clearly pistol ammo is just like stabbing something with a nail...

[JamesW]

Did it get filed again in time? 

 

[Upholder]

On 6/23/2023 at 6:32 PM, JamesW said:

Did it get filed again in time?

 

The court did accept the refiled brief:

 

Quote

69   Jun 22, 2023    Brief filed by Javier Herrera, per order. Paper copies due on 06/26/2023. Electronically Transmitted. REMINDER: If a case is designated to proceed to oral argument, hearing notices will be mailed shortly before the date of oral argument. Please note that counsel's unavailability for oral argument must be submitted by letter, filed electronically with the Clerk's Office, no later than the filing of the appellant's brief in a criminal case and the filing of an appellee's brief in a civil case. See Cir. R. 34(b)(3). The court's calendar is located at https://www.ca7.uscourts.gov/cal/argcalendar.pdf. Once scheduled, oral argument is rescheduled only in extraordinary circumstances. See Cir. R. 34(b)(4), (e). [69] [7318578] [23-1793] (LJ) [Entered: 06/22/2023 10:47 AM]

 

[AlphaKoncepts aka CGS]

Dec 11 Enbanc hearing denied for TRO. Perhaps we will have the new schedule next month since the previous dates were held pending the appellate decision. 

[Euler]

This case was consolidated with Barnett. Updates on the consolidated case are posted there.

[Euler]

On February 12, Herrera filed a petition for certiorari at the US Supreme Court.

docket

[Euler]

Petition denied. Alito would have granted the petition. The district case is still proceeding (slowly) in the Northern District of Illinois.

As noted in the Barnett thread, Thomas wrote an opinion explaining the denial, calling CA7's ruling against the preliminary injunction "ridiculous," among other things.

[Euler]

On August 1, the judge scheduled a status hearing for August 29 to discuss scheduling pleadings and discovery.

[Euler]

On August 14, plaintiffs filed an amended complaint. (I haven't read it.)

[Euler]

On October 4, the parties proposed a joint discovery schedule.

On October 7, the judge issued the following schedule:

10/29: disclosure of people (other than expert witnesses) to be deposed due
02/12: notice to the court if discovery will not complete by February 26 and proposed expert discovery schedule due
02/26: discovery (other than expert) to be completed

[ragsbo]

On 10/8/2024 at 1:33 AM, Euler said:

On October 4, the parties proposed a joint discovery schedule.

On October 7, the judge issued the following schedule:

10/29: disclosure of people (other than expert witnesses) to be deposed due
02/12: notice to the court if discovery will not complete by February 26 and proposed expert discovery schedule due
02/26: discovery (other than expert) to be completed

Keeps kicking down the road as far as they can while still violating