Legal

B.L.U.F.
The babblings of a not lawyer about just how good a weekend order from the Ninth Circuit was for The People.
(1500 words)

There is a name that should be familiar to us, but which is not, Federal Judge Jack Weinstein. He sat on the Eastern District of New York district court from 1967 until 2020.

Why is he important? He was the federal judge that oversaw a number of mass tort cases. The one of interest to us, in the Second Amendment community, is the cases involving Diethylstilbestrol, or DES.

DES was prescribed to pregnant woman to reduce the risk of complications from 1940 through the early 1970s.

It turned out that it caused significant medical complications.

Of course, being America, once it was determined that there was an injury and that somebody might be at fault, lawsuits were filed.

But here is the thing, every pharmaceutical company made DES. Each of the pills was the same. It was almost impossible to tell the manufacture of a DES pill.

More than that, most people just don’t know. When I look at my medication bottles, there is no indication of who manufactured that particular lot of pills. I can go to my pharmacist and find out. On the other hand, I would have a difficult time finding out who manufactured the pills I took when I lived in Maryland. I’m not even sure what pharmacy I used, at that time.

This is where Judge Weinstein comes in. His name was pulled as the judge to hear the first suit filed in the eastern district of New York. From the start, it looked like he was sympathetic to the plaintiffs, the people suing. More suits were opened in the Eastern District.

Instead of a judge being drawn at random, the plaintiffs would request that their case be handled by Judge Weinstein. For judicial expectancy, these requests were granted. This is normally a good thing. This is what happened in California when Judge Benitez was the judge to hear so many Second Amendment challenges.

The defendants stood up in court and said, “Hey, it wasn’t me, and they can’t prove it was me. Dismiss me from the suit.”.

This is because no plaintiff could point to any particular defendant and prove that the defendant in question was the company that manufactured the pills that the defendant took. Since there was no way of figuring out which defendant was responsible for which plaintiff, it looked like the cases would be dismissed.

Judge Weinstein reviewed this and came up with a plan. His plan was a type of joint responsibility. He reasoned that for any particular year, each defendant held a particular market share. Company A held 50%, company B held 25%, company C held 15%, and D, E, and F held the remaining 10%. His ruling was that each company was responsible for a portion of the fine based on their market share.

Thus, for every $100 award, company A paid $50, company B paid $25 and so on.

But how did this intersect with the Second Amendment?

It turns out that Judge Weinstein was a rabid anti-gun person. There wasn’t a thing about guns he approved of, unless it was protecting his sorry arse.

The anti-gunners were not winning in the courts in ways to completely ban guns, but they reasoned that they could “get rid of guns” if there were no more sellers or manufacturers of guns. To this end, they started suing gun manufacturers and sellers.

And they filed in the Eastern District of New York. And they requested that the cases be assigned to Judge Weinstein because these gun suits were just like the lawsuits filed in the DES cases. Judge Weinstein gleefully accepted these cases.

Even if the defendants (good guys), won the suits, the costs of litigation were so high it drove smaller companies out of business.

This ended with Congress passing several bills to stop it, the current version is the PLCAA.

Lawfare

Read More

On December 20, 2023, District Court Judge Cormac J. Carney of the Southern District of California granted the plaintiffs (good guys) motion for a preliminary injunction.

This enjoined (stopped) the state of California from enforcing California Senate Bill 2. This was the “every place is sensitive, no guns allowed” bill.

Quoting Judge Carney, . SB2’s coverage is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court. Reno May v. Robert Bonta, 8:23-cv-01696, (C.D. Cal. Dec 20, 2023) ECF No. 45.

Of course, the state started whining like a little baby when their infringement was slapped down. They went running to the Ninth Circuit to get an emergency stay.

The only surprise in this was that it took the state two whole days to file for the emergency stay.

While waiting for the emergency administrative panel to give their order, The People of California, lucky enough to have a CCW, could carry in all the places they use to be able to carry.

On December 30, 2023, Judges Johnnie B. RAWLINSON, Jay S. BYBEE, and Andrew D. HURWITZ granted the stay. This meant that on January 1st, 2024, The People of California could no longer carry. It was impossible, or nearly so, to carry with a CCW without violating a sensitive place restriction.

We do not know whether this was a three to zero ruling or a two to one ruling.

There were no more filings after the December 30th order. But the plaintiffs must have been working hard, behind the scenes. How do we know that? Because yesterday afternoon, the 6th of January, the stay was dissolved. At least one judge on the Ninth Circuit had the gonads to stand up for The People.

All the filings have been forwarded to the merits panel.

The case is going to be heard on the merits? Wow?

What is even more amazing is that it will be heard in April. To put this in perspective:

Punch it Chewy!

Duncan v. Bonta 23-55805 (9th Cir). The 9th circuit granted a stay pending the outcome of the appeal. They will be hearing oral arguments on March 18, 2024. This means that The People living in California will be deprived of their civil rights until the 9th returns their opinion.

This is sickening because the Supreme Court already told the Ninth they got it wrong when they GVRed this case after Bruen

Renna v. Becerra is still in a holding pattern. The District court ordered an injunction, then stayed the injunction pending resolution in the Ninth Circuit court. That was back in April. Still no movement on the case.

Barnett v. Raoul 23-cv-00209 (S.D. Illinois) is slowly moving forward. The parties agree that this case is going to seek cert. with the Supreme Court. Therefore, they are doing discovery to have facts on record. Everybody in the case is dotting “i”s and crossing “t”s to make sure the case is processed correctly.

Most of this is because the Seventh Circuit court has too many agenda driving rogue judges on it.

Carralero v. Bonta, 8:23-cv-01798, (C.D. Cal.) was our win from Wednesday, Friday, the state gave notice that they would be appealing. Until the Ninth Circuit grants the stay, many of the sensitive places restrictions in California are enjoined.

This could be good news for the 2A community. If the en banc panel that is messing with Virginia Duncan tries to grab this case, it will be clear that they are cheating. If a different three judge panel gets this case, they could rule for The People.

The state should be procedurally barred from asking for a stay on the injunction because they have not asked the district court for a stay.

Reno May v. Robert Bonta, 8:23-cv-01696, (C.D. Cal.) sees the state appealing to the Ninth Circuit. Same old stuff as Carralero

Kipke v. Moore, 1:23-cv-01293, (D. Maryland) is having numerous supplemental authority filings. The plaintiffs (good guys) have brought up the S.D. California win for The People. The state is bringing up the Antonyuk decision by the Second Circuit.

Of course, the state has to cheat. They only mention the parts of the Second Circuit’s opinion that support them, totally omitting the few places where the Second eviscerated their regulation.

Bains v. American Tactical, Inc., 6:23-cv-06208, (W.D.N.Y.) is the lawfare against gun manufactures and resellers for the acts of bad people. The current attack is to claim that the selling of firearms creates a public nuisance. Being a public nuisance is against the law, so the manufacturer or reseller are responsible for an asshole shooting others.

Rocky Mountain Gun Owners v. Polis, 1:23-cv-02563, (D. Colo.) is making its way through the Tenth Circuit court after losing at the district court level. There, the district court found that the plain text of the Second Amendment does not cover waiting periods.

Like always, the state moves at a snails pace when it means that The People will be denied their rights longer.

California Rifle and Pistol Association, Incorporated v. Los Angeles County Sheriffs Department, 2:23-cv-10169, (C.D. Cal.) is a new case. It was filed in early December. It challenges the cost in time and money to get permits to carry in certain locations in California.

More importantly, it challenges the lack of reciprocity. California does not recognize any other state’s CCW. California does not allow out of state residents to get California CCWs. This means that out of state residents are denied the right to carry in California.

This flies directly in the face of Bruen. This could be the start of nationwide reciprocity. I can certainly dream.

I hate traveling into Mordor. The state was horrible before Bruen, since Bruen it has just gotten worse. They still have laws on the books that require people to have state permission to purchase or posses ammunition or ammunition components.

There are many more, but this gives a sampling. I’m watching for a request for certiorari from Bevis out of Illinois. They made a request on the Supreme Court’s emergency docket, which was denied. A straight-up ask might be granted.