Sleeper: Enos v. Holder (Lautenberg)

[krucam]

Here's the ruling: http://www.archive.org/download/gov.uscourts.caed.215824/gov.uscourts.caed.215824.63.0.pdf

 

[hvymax]

Kilmer just posted the order granting the defendants' motion to dismiss. Based on a quick skim, it's a mix of filing Lautenberg under Heller's list of longstanding presumptively lawful regulatory measures and lack of standing/failure to stake a claim since plaintiffs haven't been arrested for violating 922(g)(9).

Gotta love the 2A catch 22. If you have not been arrested then you don't have standing but if you have then the SCOTUS will refuse your case.

 

[krucam]

This District Ct Judge was NOT going to dismantle Lautenberg. This is evident on Pg 14/22:

Lastly, Defendants urge the Court to look to congressional
intent, reasoning that Congress, when enacting § 922(g)(9) and
§ 921 and in 1996, did not intend for the right to bear arms to be
included as a “civil right” for purposes of restoration under 18
U.S.C. § 921(a)(33)(b)(ii). Indeed, as Defendants argue, common
sense dictates that the Legislature in 1996 could not have intended
“civil rights” to include a right that the Supreme Court did not
recognize until Heller in 2008.

Instead of looking at it with an eye towards Heller/McDonald (2008/2010) adding to a decision of whether Lautenberg (1996) should be reevaluated, they twist it saying Lautenber didn't consider the 2A as a Civil Right because it predated Heller/McDonald.

Gotta love that logic...

More:

Plaintiffs were unable to cite to any case supporting their
argument that the restoration of an individual’s right to possess a
firearm constitutes a restoration of “civil rights” under 18 U.S.C.
§ 921(a)(33)(B)(ii). To find that Plaintiffs have stated a claim
for the declaratory relief that they seek, this Court would be
required to interpret 18 U.S.C. § (921)(a)(33)(B)(ii) in a way that
no other court has, thus far, interpreted this statute.

Because no other Judge has had the balls to challenge Misdemeanor Crime of Domestic Violence (MCDV) on 2A grounds, the right doesn't exist when looked at through "MCDV-colored" glasses...

This is indeed a new variation of a 2-step.

 

[Boxcab]

Appeal?

 

[krucam]

Appeal?

Done...before the ink was dry on the pdf.

Look, starting at Post #456, at Calguns from the Enos Case's Attorney, Don Kilmer (Lex Arma):
http://www.calguns.net/calgunforum/showthread.php?t=417935&page=12

#456 @ 6:07am PST. Loss announced
#461 @ 11:42am PST. Appealed.

 

[krucam]

Additional (and final) filings in the District Court. Reminder that Enos (MCDV) is being appealed to the 9th Ckt.

03/01/2012 RECEIPT number #CAE200042588 $455.00 by Donald E Kilmer Jr on 3/1/2012. (Becknal, R) (Entered: 03/01/2012)

03/07/2012 68 APPEAL PROCESSED to Ninth Circuit re 65 Notice of Appeal filed by Vernon Newman, Jeff Bastasini, Manuel Monteiro, Louie Mercado, Richard Enos, Jeff Loughran, Walter Groves, Edward Erikson. Filed dates for Notice of Appeal *2/29/2012*, Complaint *10/29/2012* and Appealed Order / Judgment *2/28/2012*. ** *Fee Status: Paid on 3/1/2012 in the amount of $455.00* ** (Attachments: # 1 Appeal Information, # 2 Certificate of Record) (Reader, L) (Entered: 03/07/2012)

03/08/2012 69 USCA CASE NUMBER 12-15498 for 65 Notice of Appeal filed by Vernon Newman, Jeff Bastasini, Manuel Monteiro, Louie Mercado, Richard Enos, Jeff Loughran, Walter Groves, Edward Erikson. (Waggoner, D) (Entered: 03/08/2012)

CA9 Case # 12-15498

Taking a peek over at CA9 gives us a Schedule:

03/08/2012 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 03/15/2012. Transcript ordered by 03/30/2012. Transcript due 04/30/2012. Appellants Jeff Bastasini, Richard Enos, Edward Erikson, Walter Groves, Louie Mercado, Manuel Monteiro and Vernon Newman opening brief due 06/08/2012. Appellees Eric H. Holder Jr., Attorney General, Robert S. Mueller III and United States of America answering brief due 07/09/2012. Appellant's optional reply brief is due 14 days after service of the answering brief. [8095245] (RT)

Appellant/Pltf Opening Brief: 6/8/12
Appellee/Def Answering Brief: 7/9/12
Appellant Optional Reply Brief: 7/23/12

 

[Boxcab]

Summer intrigue.

Lets hope the 9th rules quickly and does not drag the ruling out to next summer.

 

[papabear911]

Three things:

1.) I agree with the top sentiment. If John Q Drug Dealer gets arrested for dealing drugs and he had a piece on him, I don't think he should be allowed to own a gun as soon as he gets out.

Now if John R DumbF'ck did something stupid at 20, and is now 25 and a stand up citizen, he should be entitled to restore his rights.

2.) I think we are going to see a trend that the government will argue technical points, because it knows it can't survive on the merits of the case.

3.) I think one thing we can expect to see ended are the impossible regulations. Like the "You can get get your gun rights back by petitioning the AG, but the AG isn't allowed to restore gun rights." Or "You need to go to a gun range to get a permit to own a gun, but we won't allow gun ranges in Chicago." Or "You can apply for a handgun CCW in DC, but we aren't giving you the form."

To anyone that has not had the un-fortunate experiance of being involved in a DV incident, especially in Calif. you really don't know how easy it can be and how you may not ever live it down. It can be a tragic experiance for all invloved and their are no winners. But when you are defending your self from assault, (from the wife) you are autimatically looked upon as the bad guy, really no matter what. So try not judge unless you've been there.
My ex popped me in the jaw and as an instinct I popped her back. She even told the PD she hit me first (her girlfriend made the call) yet I was convicted.
I had a clean record until then and now I can never own a gun? That's not right.

 

[gmhowell]

To anyone that has not had the un-fortunate experiance of being involved in a DV incident, especially in Calif. you really don't know how easy it can be and how you may not ever live it down. It can be a tragic experiance for all invloved and their are no winners. But when you are defending your self from assault, (from the wife) you are autimatically looked upon as the bad guy, really no matter what. So try not judge unless you've been there.
My ex popped me in the jaw and as an instinct I popped her back. She even told the PD she hit me first (her girlfriend made the call) yet I was convicted.
I had a clean record until then and now I can never own a gun? That's not right.

It's almost exactly the same in MD and in all 50 states, thanks to VAWA. Welcome to MDS. Don't forget to hit the intro forum.

 

[krucam]

Don Kilmer (aided by the Madison Society) filed their Opening Brief in Enos yesterday at the 9th Circuit. Enos had his MCDV expunged by the issuing authority (California) after 10 years, but the Federal strike still exists (Lautenberg). One of the "good" 922 cases IMHO.

05/11/2012 9 Filed clerk order (Deputy Clerk: LBS):Appellants’ unopposed motion for a extension of time to file the opening brief is granted. The opening brief is due July 9, 2012; the answering brief is due August 8, 2012; and the optional reply brief is due within 14 days after service of the answering brief. Appellants are reminded that a motion for an extension of time should be accompanied by a declaration stating that the court reporter is not in default with regard to any designated transcripts. See 9th Cir. R. 31-2.2(b)(7). [8175482] (LBS)

07/09/2012 10 Submitted (ECF) Opening brief for review. Submitted by Appellants Jeff Bastasini, Richard Enos, Edward Erikson, Walter Groves, Louie Mercado, Manuel Monteiro and Vernon Newman. Date of service: 07/09/2012. [8242757] (DK)

07/09/2012 11 Filed (ECF) Appellants Jeff Bastasini, Richard Enos, Edward Erikson, Walter Groves, Louie Mercado, Manuel Monteiro and Vernon Newman Correspondence: Certificate of Service of Excerpt of Record. Date of service: 07/09/2012 [8242772] (DK)

 

[krucam]

The Federal gov’t is saying that the only civil rights that are out there that are eligible for reinstatement are:
(1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office

That’s the way it has always been….I mean, when the above was established, there was no such thing as the 2A being a fundamental civil right….SOOO pre-Heller and McDonald.

The Feds say they won’t reinstate 2A rights until CA does so. CA says they did so, after 10 years.

California, when penalizing a person for MCDV, triggers the Federal RKBA prohibition under Lautenberg. The State also can (and has) reinstate the RKBA at the State level. So…California rightly says they have nothing else to do.

Using their pre-2008 time warp, the Feds say they can’t reinstate the RKBA, only voting/jury/public office civil rights restorations are out there to reinstate following a MCDV offense. Besides, Lautenberg invokes a LIFETIME ban, it doesn’t matter if CA says the post-MCDV prohibitions have lapsed after 10 years.

Are you following this?

Perhaps this will help, from the Brief:

This tautology is not unlike the argument between the Queen and Alice over when jam can be served:

“You couldn't have it if you did want it,” the Queen said. “The
rule is, jam tomorrow and jam yesterday – but never jam today.”

“It must come sometimes to 'jam today,'” Alice objected.

“No, it can't,” said the Queen. “It's jam every other day: today
isn't any other day, you know.”

Through the Looking-Glass (5.16-18)
By Lewis Carroll​

​

 

[boricuamaximus]

The Federal gov’t is saying that the only civil rights that are out there that are eligible for reinstatement are:
(1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office

That’s the way it has always been….I mean, when the above was established, there was no such thing as the 2A being a fundamental civil right….SOOO pre-Heller and McDonald.

The Feds say they won’t reinstate 2A rights until CA does so. CA says they did so, after 10 years.

California, when penalizing a person for MCDV, triggers the Federal RKBA prohibition under Lautenberg. The State also can (and has) reinstate the RKBA at the State level. So…California rightly says they have nothing else to do.

Using their pre-2008 time warp, the Feds say they can’t reinstate the RKBA, only voting/jury/public office civil rights restorations are out there to reinstate following a MCDV offense. Besides, Lautenberg invokes a LIFETIME ban, it doesn’t matter if CA says the post-MCDV prohibitions have lapsed after 10 years.

Are you following this?

Perhaps this will help, from the Brief:
[/INDENT]

Master Yoda...

Screwed up my mind is now. Jam is not today for today it is yesterday.

 

[press1280]

More circular logic from the government.

 

[cad68m_m]

Why am I not surprised that this POC Lautenberg Amendment sprang from the pen of a NJ Senator

 

[Al Norris]

Let's look at some more quotes from the brief.

Pages 3&4:

The controversy before this Court is caused by the federal government’s untenable interpretation of the LAUTENBERG AMENDMENT’S restoration of rights provisions which goes something like this:

• The SECOND AMENDMENT rights suspended by the LAUTENBERG AMENDMENT can only be restored if the state misdemeanor conviction suspends civil rights and then the jurisdiction restores those civil rights.
• The only civil rights recognized by federal law that can be suspended and thus restored is (somewhat arbitrarily) limited to: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office.
• Therefore unless the domestic violence misdemeanant lost: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office – as result of an MCDV conviction; no civil rights were lost, ergo – there are no rights to restore.
• Therefore the federal government need not honor ANY restoration of rights procedure by any state where a conviction for a MCVD does not result in the loss of: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office
• This result begs the question. Since no state suspends these rights upon a misdemeanor conviction for domestic violence – except while the misdemeanant is actually incarcerated (and in most states {including California} not even then) the LAUTENBERG restoration of rights provision that relies upon state restoration of civil rights procedures is rendered a dead letter by the government’s interpretation.

Don goes into the "Alice" dialog (quoted by Mark) at this point.

After a few more pages of "housekeeping," the main arguments begin on page 18.

Pages 18-22 contain the preliminary arguments of this entire case. It is much too much to quote here, but it should be required reading for those watching this case. These points really highlight what the law requires and the absurd manner in which the Fed.Gov is interpreting the law.

Page 25:

The plain language of 18 U.S.C. § 921(a)(33)(B)(ii) contemplates some state law procedure for restoration of any civil rights forfeited under state law by a MCDV conviction. Appellee-Defendants keep veering off into familiar pre-Heller/McDonald territory with their mantra that a conviction must result in the loss of the right to vote, to hold public office and to sit on a jury – and that only restoration of those rights resurrects the ‘right to keep and bear arms’ – while ignoring that the ‘right to keep and bear arms’ are also civil rights.

Page 26:

Defendants would have this Court interpret the LAUTENBERG AMENDMENT as imposing a federal mandate requiring that states revoke the right to vote, hold public office or sit on a jury for any MCDV conviction in order to give any effect to the statute’s restoration provision. That interpretation would bring into serious doubt the constitutionality of the LAUTENBERG AMENDMENT.

In short, the main arguments, are that in order to avoid assessing the constitutionality of the statutes, the court should have simply followed CA law as to the restoration of rights, not the convoluted reasoning of the Fed.Gov.

In part IV of the brief (the shortest part), should the court recognize that there is no method of restoring the 2A rights, Don writes (pages 32-34):

The Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) gave assurances that “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller at 626-27.

As noted earlier, the LAUTENBERG AMENDMENT is a recent creature of statute having been attached to an appropriations bill during the 104th Congress in September of 1996. Therefore it is not a longstanding doctrine of American jurisprudence that a MCDV should disqualify someone from exercising a fundamental, enumerated right under our Constitution.

It is only the federal government’s insistence on an obtuse reading of 18 U.S.C. § 921(a)(33) et seq., that propels this Court toward a constitutional analysis of the LAUTENBERG AMENDMENT in light of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago 561 US ___, 130 S Ct 3020 (2010).

Because the trial court dismissed this action pursuant to Defendant-Appellees’ FRCP 12 Motion, they never filed an answer, or submitted evidence that LAUTENBERG serves a compelling or even important state interest. There certainly was no analysis of any means/ends testing to make sure this policy would address that interest.

If this Court pursues a constitutional analysis of LAUTENBERG in the shadow of the SECOND AMENDMENT, it will be required to classify Plaintiff-Appellants as ‘law-abiding’ citizens. Therefore it should adopt (almost) strict scrutiny and require the government to bear the burden of producing evidence that forbidding rehabilitated misdemeanants with a 10-year (or more) history of law-abiding conduct from exercising SECOND AMENDMENT rights serves a compelling government interest, and that the means used (a complete lifetime ban on exercising the right is necessary to achieve that interest. See: U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 and Ezell v. City of Chicago (7th Cir. 2011) 651 F.3d
684.

Don then concludes his arguments with a tautology from "Alice's Adventures in Wonderland."

 

[cad68m_m]

Thanks AL, I will have to go and read the more entertaining parts now that I know the final score

 

[krucam]

Still catching up after my two week "vacation" in IA. The original briefing schedule spelled out in Post #86 above has changed following the Opening Brief:

07/30/2012 16 Filed clerk order (Deputy Clerk: LBS): Appellees’ unopposed motion for an extension of time to file the answering brief is granted. The answering brief is due September 7, 2012. The optional reply brief is due within 14 days after service of the answering brief. [8268762] (LBS)

Defendant/Appellee Response Brief: 9/7/2012
Plaintiff/Appellant Optional Reply Brief: 9/21/2012

 

[krucam]

Defendant/Appellee Answering (Response) Brief was filed by the US AG's office late last night in Enos at CA9. Plaintiff's Reply Brief comes out in two weeks.

Haven't read yet, but an appropriate reminder of where we're at in this one, as I prepare breakfast and have a coffee...

This tautology is not unlike the argument between the Queen and Alice over when jam can be served:

“You couldn't have it if you did want it,” the Queen said. “The
rule is, jam tomorrow and jam yesterday – but never jam today.”

“It must come sometimes to 'jam today,'” Alice objected.

“No, it can't,” said the Queen. “It's jam every other day: today
isn't any other day, you know.”

Through the Looking-Glass (5.16-18)
By Lewis Carroll​

 

[M107A1]

Defendant/Appellee Answering (Response) Brief was filed by the US AG's office late last night in Enos at CA9. Plaintiff's Reply Brief comes out in two weeks.

Haven't read yet, but an appropriate reminder of where we're at in this one, as I prepare breakfast and have a coffee...

Thanks for the timely post.

 

[krucam]

Don Kilmer & Co. filed the final Plaintiff (Appellant) Reply Brief in Enos yesterday. Haven't read yet...