Peterson v LaCabe Case (CO Residency Requirment)

[Gray Peterson]

the 9th is rather unique. It has a real need for en banc as the sheer volume of decisions in that huge circuit practically ensures intracircuit conflicts. And their en bancs are not really en banc -- it is an en banc panel of 11 judges (not all the circuit judges). You can seek a real en banc review from an en banc panel decision. Bizarre is an understatement.

28 judge en banc has never happened.

 

[esqappellate]

28 judge en banc has never happened.

Right. It is a theoretical possibility only. Only in the fruit and nuts land blessed by the sun

 

[Gray Peterson]

Right. It is a theoretical possibility only. Only in the fruit and nuts land blessed by the sun

It's been petitioned for three times. All three were rejected. That would be a logistical nightmare, though less so with technology, or venue would be a large hall...

 

[esqappellate]

It's been petitioned for three times. All three were rejected. That would be a logistical nightmare, though less so with technology, or venue would be a large hall...

I don't think the 9th has a big enough court room. At least not one that I have ever seen. Their en banc court room isn't large enough. Maybe if they scrunched together or sat in each other's laps. Anything is possible in San Francisco....

 

[yellowfin]

I do think they will reach the P & I clause issue on the reciprocity claim. That seems clear from the argument. The argument there seems to be that the state statute is unconstitutional to the extent it bars out of state persons from any possibility of carrying in Denver. An interesting theory under P&I, but I am not confident that we will get a win out of that. That would be really unprecedented and I don't see this panel as willing to reach for that result. Just too hard. The problem is that the Colo statute addresses only concealed carry and the panel feels bound by Robinson. Colo gets to ban concealed carry entirely, even under P&I clause. Hope I am wrong on that -- it would be very big win if we get it. To actually get to the 2A issue, you have to get to the Denver ordinance cuz it is only because of the Denver ban on OC is the 2A issue really presented. In the rest of Colo, apparently, Petersen could OC. Yet, I heard real reluctance to hold that Denver ordinance is unconstitutional when the complaint did not specifically request that relief and the City did not participate below on that issue. Paragraph 8 of the complaint did not seem to placate those on the panel who had a problem. I understand the theory of the complaint, but I simply don't understanding the thinking as to why relief was not requested as to Denver's ordinance, especially since they sued the Sheriff of Denver. It is a bad sign when the panel has had two arguments and the whole second argument is still devoted to the question of "what is before us" and the merits were scarcely argued at all. Not to be harsh here, as it is always easy to second guess after the fact (hind sight is always 20 20), but fubar comes to mind.

The interesting thing seemingly not brought up in the orals at least so far as I noticed was the question of equal protection in Colorado's reciprocity policy: I as a Pennsylvania resident can now carry in Denver because CO recognizes my current home state carry license as it is a resident PA license, whereas just a couple of months ago I couldn't carry there because it was a nonresident license and I was in New York which is one they didn't--and I never had it anyway--and it's the exact same license I've continually had. Exactly what reason can CO or Denver possibly articulate as to why one nonresident can carry and another can't, especially in cases when it's the same person with the same license?

(Though I must admit I do feel a bit saner for having moved out of hell into the free world at last.)

 

[Gray Peterson]

The interesting thing seemingly not brought up in the orals at least so far as I noticed was the question of equal protection in Colorado's reciprocity policy: I as a Pennsylvania resident can now carry in Denver because CO recognizes my current home state carry license as it is a resident PA license, whereas just a couple of months ago I couldn't carry there because it was a nonresident license and I was in New York which is one they didn't--and I never had it anyway--and it's the exact same license I've continually had. Exactly what reason can CO or Denver possibly articulate as to why one nonresident can carry and another can't, especially in cases when it's the same person with the same license?

(Though I must admit I do feel a bit saner for having moved out of hell into the free world at last.)

That was a good point brought up by Judge Hartz.

 

[krucam]

The 28J Letter from John Monroe in Gray's case, citing CA7's Moore/Sheppard ruling:

 

[press1280]

The 28J Letter from John Monroe in Gray's case, citing CA7's Moore/Sheppard ruling:

Good idea to wake the court up on this case, it would now seem quite overdue at least as far as non-Palmer standards.

 

[Al Norris]

Over in the thread, CA4 Issues Stay, Expedites Appeal, I made some allusions to what this case might mean, for Woollard.

Since a decision in this case is long overdue, I would like to expand upon a couple of items of interest (and wake the thread up).

Here is a bit of the CA10 docket that no one has yet commented upon:

11/08/2012 [10017698] Notice of appearance submitted by Robert A. Wolf; and Andrea Kershner for Appellee Charles F. Garcia for court review. Certificate of Interested Parties: No. Served on 11/08/2012. Manner of Service: ECF/NDA. --[Edited 11/08/2012 by SDS to remove pdf from entry as the pleading has been filed] [11-1149] RW

11/08/2012 Open Document [10017734] Notice of appearance filed by Ms. Andrea J. Kershner and Mr. Robert Wolf for Charles F. Garcia. CERT. OF INTERESTED PARTIES: n. Served on 11/08/2012. Manner of Service: ECF/NDA. [11-1149]

The two attorneys are (new) attorneys for the City of Denver.

The first entry was a request to certify that the two attorneys listed were the interested parties (City of Denver) new attorneys. This document was not the actual certificate but was more of a supplemental pleading.

Remembering that Denver elected not to participate in the appeal, the court clerk took a dim view of this filing and removed it. Notified of the removal, the interested parties filed the proper notice (the second entry).

Esqappellate can correct me, but this appears to be that the City of Denver was getting antsy about the long delay in the decision and tried, in an entirely inappropriate manner, to sway the court. The clerk slapped their hands. Still, they then filed a formal certificate of interested parties.

Nothing else on the docket happened until a month later (Dec. 7th), the State filed a 28J letter in regards Kachalsky. Gray filed a response (Dec. 8th) and then on Dec. 17th, Gray filed a 28J letter in regards Moore.

The State did not file a response, nor did the court recognize the City of Denver, formally.

I'm unsure what to make of this, other than Denver is distressed that a decision has not been reached and that the State did not refute how Moore could apply to this case.

That said, this may be good news to Gray. But see my latest posts in the Woolard thread. As of this post, the CA10 decision was not posted (today, Jan. 23rd).

 

[press1280]

I see how Moore is directly applicable to this case-total ban outside the home(or hotel/friends house in Denver's case). I hope they're not waiting for cert. A strong decision in Peterson will help push Kachalsky to SCOTUS.

 

[Southwest Chuck]

Loss. 10th Affirms.
http://www.ca10.uscourts.gov/opinions/11/11-1149.pdf

In Robertson v. Baldwin, 165 U.S. 275 (1897), the
Supreme Court stated in dicta that “the right of the people to keep and bear arms is not
infringed by laws prohibiting the carrying of concealed weapons.” Id. at 281-82. More
recently, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Court noted that “the
majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state
analogues,” and explained that “nothing in our opinion should be taken to cast doubt on
longstanding prohibitions.”

Is this another split with Moore?

 

[press1280]

It'll probably be taken as agreeing with Kachalsky, however, it appears if you look closely you'll notice they say that Peterson waived his open carry claim. Then, only judge Lucero says he'd still hold the same opinion even if concealed carry was protected under the 2A. That kind of hints to me the other 2 could have sided with Peterson if it were a direct challenge to Denver's OC ban.
Nevertheless this probably doesn't help us at least from what I gather through a quick skim through.

 

[AliasNeo07]

Damn.

 

[john_bud]

^ yet what else was expected from them?

 

[hdatontodo]

http://www.foxnews.com/politics/2013/02/23/appeals-court-upholds-concealed-weapons-ruling/

 

[Afield]

This is where the right itself should not be confused with the choice of implementing it. The plaintiff, I think, did not contest the ban on open carry.
Even in Heller, SCOTUS said that banning concealed carry was fine. Bearing does not mean it need be concealed.
The winning argument would be that some sort of carry must be allowed....either open or concealed. Texas, of course, bans open carry.

I assume the subtleties of these arguments aren't lost on the Supreme Court when some case gets there.

 

[Al Norris]

From the amended complaint:

15. Denver Ord. § 38-117.5 vests Defendant La Cabe or his designee with authority
to issue CHLs.

Since Denver is a Home Rule city, this ordnance actually supercedes the State law. Defendant LaCabe could have issued a non-resident permit, but chose not to (ostensively in complaince to a State law that he did not have to obey).

Now look at Count 5 of the amended complaint (my emphasis):

Count 5 – Violation of Second Amendment by All Defendants

59. By prohibiting any meaningful opportunity for Plaintiff to bear arms in the City and County of Denver through a licensing scheme that precludes Plaintiff from obtaining a necessary license to bear arms, Defendants have violated Plaintiff’s right to bear arms guaranteed by the Second Amendment to the Constitution of the United States.

This was said several times at orals. Right there is what both the district court and the CA10 wholly and fully, ignored.

Instead, the court centered itself with concealed carry alone. That is error.

 

[CrueChief]

I guess what may have been lost in all legal speak is what Colorado issues, is it a License to carry a firearm or a concealed carry permit?

 

[press1280]

I guess what may have been lost in all legal speak is what Colorado issues, is it a License to carry a firearm or a concealed carry permit?

It's a concealed handgun license.

 

[press1280]

While this would have been a great win, it still comes down to Kachalsky(or Moore). If Kachalsky wins, he will get a CCW where there is no open carry. That'll make it pretty cut and dry that Peterson should in theory get a GVR in his case. Denver, like NY does not allow OC and only CCW w/permit.
The timing is such that Peterson can ask for en banc which will push the SCOTUS clock forward, and then ask for cert. when Kachalsky has already been picked up.