Duncan vs. Becarra (CA magazine ban case) -- Judge is awesome

[n1oty]

“I think about the numerous shootings that are often stopped when someone jumps in when the shooter is reloading,” said Josh Horwitz, executive director of the Coalition to Stop Gun Violence. “For people shot by the second magazine, it really matters.”

Such as?

It didn't matter at Parkland. That shooter specifically used 10-round mags. Apparently, reloading on the fly is not a problem for mass shooters.

 

[Dadstoys]

“I think about the numerous shootings that are often stopped when someone jumps in when the shooter is reloading,” said Josh Horwitz, executive director of the Coalition to Stop Gun Violence. “For people shot by the second magazine, it really matters.”

Such as?

No kidding .
I'd like to see him name a single one.

 

[92G]

“I think about the numerous shootings that are often stopped when someone jumps in when the shooter is reloading,” said Josh Horwitz, executive director of the Coalition to Stop Gun Violence. “For people shot by the second magazine, it really matters.”

Such as?

I love this "it was the 11th round that...." logic.

by such craptastic argument,

it was the 85th mph
it was the 8th foot of the pool
it was the 7th beer
it was the 120th mg of oxycodone

it assumes some principle of "least amount as deemed by .gov". beyond dumb.

 

[MachineHead]

I love this "it was the 11th round that...." logic.

by such craptastic argument,

it was the 85th mph
it was the 8th foot of the pool
it was the 7th beer
it was the 120th mg of oxycodone

it assumes some principle of "least amount as deemed by .gov". beyond dumb.

Don’t give them any ideas, Squib. The 10+1 concept would floor them seeing more than 10 rounds.

 

[Bonesinium]

If there was a correlation between magazine capacity, the number of rounds fired, and when the shooting stops (for any reason) during the commission of crimes, there would be statistics to support it. But there aren’t.

If a ten round magazine restriction had any impact you’d expect most shootings to have 10 or 11 (10+1) rounds fired. Not more. Not less. Less would indicate the shooter either stopped or was stopped before running out of rounds in the magazine. More would indicate the shooter was able to reload or had a larger magazine. In both cases the restriction shows to have been meaningless.

 

[M1911]

Don’t give them any ideas, Squib. The 10+1 concept would floor them seeing more than 10 rounds.

I heard of one assistant district attorney trying someone for possession of a “large capacity” magazine using precisely that logic — that 10+1 was > 10.

 

[amm5061]

“I think about the numerous shootings that are often stopped when someone jumps in when the shooter is reloading,” said Josh Horwitz, executive director of the Coalition to Stop Gun Violence. “For people shot by the second magazine, it really matters.”

Such as?

Because everyone knows that reloads take more than a couple seconds and there's tons of time to rush a shooter while he's reloading....

 

[drgrant]

It didn't matter at Parkland. That shooter specifically used 10-round mags. Apparently, reloading on the fly is not a problem for mass shooters.

The Virginia Tech shooter also had mostly 10 round mags, and basically used his 2nd gun to cover himself while reloading.... but of course the media didn't say much about either of those facts...

 

[NewGuyRay]

Sounds like it's time for legislation to limit magazine ownership to one per compatible firearm platform. That should fix the reloading problem.

 

[rep308]

For one week, high-capacity ammunition magazines were legal in California. Hundreds of thousands may have been sold

A ban on the sale of ammunition magazines that hold more than 10 rounds has been a linchpin of California’s efforts to prevent mass shootings for nearly two decades.

But in the span of a single week after a federal judge temporarily set aside the prohibition, hundreds of thousands of the devices, if not millions, made their way into the hands of state residents, industry leaders say.

The run on high-capacity magazines from March 29 to April 5 — so fervid that online traffic from gun enthusiasts around the state crashed at least one retail website — was hailed as “Freedom Week” by the California Rifle and Pistol Association and criticized as an alarming safety breach by gun-control advocates.....snip

Then they admit laws are useless anyway:

.....State residents have in the past two decades found other ways to get ahold of the magazines. According to police, California residents have been known to purchase the devices in Nevada and drive them back over the border. Magazines don’t carry serial numbers, so tracking them is nearly impossible.

 

[DispositionMatrix]

Democrat AG’s [sic] Across The U.S. Defend California’s Magazine Ban

A legal challenge to California’s ban on the possession of magazine that can hold more than ten rounds has prompted 18 Democrat AG’s from around the country to weigh in on the side of the state. The case of Duncan v. Becerra is currently being heard in the 9th Circuit Court of Appeals, and these Attorneys General, led by the AG for the District of Columbia, have submitted a friend of the court brief with the 9th Circuit arguing California has the power to ban magazines without violating the 2nd Amendment rights of residents. Additionally, these AG’s also say that any court using “intermediate scrutiny” in reviewing gun control laws like California’s magazine ban must defer to the state’s decision and cannot throw out the law on constitutional grounds.

The Attorneys General of D.C., Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, New Jersey, and Washington State claim that a federal judge erred when he blocked California’s law from going into effect.

Reasonable firearm regulations are fully compatible with the right to keep and bear arms protected by the Second Amendment. The erroneous interpretation advanced by the court below breaks sharply from these precedents. Its reasoning and non-deferential review of legislative judgments, if adopted by this Court, would tie States’ hands in responding to threats to public safety and impermissibly impinge on States’ policymaking authority.

 

[amm5061]

Oh, so they're saying that the court should apply strict scrutiny to gun control cases then? Okay, I'm all for it!

 

[Dennis in MA]

Now here's your kicker. You get an Amicus brief signed by the AG's of

Delaware
Illinois
New Mexico
Michigan
Minnesota
Oregon
Penn
RI

THERE ARE NO MAGAZINE RESTRICTIONS IN THESE STATES!!!!!!!

Eight of 18 are in "free" states. And Colorado - a less-free state, did NOT sign the brief.

Strange brew, kill what's inside of you.

 

[amm5061]

Now here's your kicker. You get an Amicus brief signed by the AG's of

Delaware
Illinois
New Mexico
Michigan
Minnesota
Oregon
Penn
RI

THERE ARE NO MAGAZINE RESTRICTIONS IN THESE STATES!!!!!!!

Eight of 18 are in "free" states. And Colorado - a less-free state, did NOT sign the brief.

Strange brew, kill what's inside of you.

If I lived in one of those states, I'd be real interested to see what sort of back door shady legislation they were trying to pass....

 

[CatSnoutSoup]

The New York AG yesterday...



:emoji_tiger:

 

[DispositionMatrix]

This is being heard in the Ninth. The restrictionists are going to win.

 

[foy1der]

This is being heard in the Ninth. The restrictionists are going to win.

We don't have to win in the Ninth and of course we'll lose, but we have to win with SCOTUS.

 

[Mass-diver]

Soooooo many mags got in

 

[Dadstoys]

"Reasonable firearm regulations are fully compatible with the right to keep and bear arms protected by the Second Amendment"
And who exactly is the one determining "Reasonable?"

 

[Deleted member 67409]

Judging from the quote, it looks like the Federal district court judge is being reviewed by the 9th Circuit on a "clear error" standard. Clear error is a hard standard to overturn because to quote Judge Posner:

the trial court decision "must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish."

https://pdfs.semanticscholar.org/68c7/74541f8623dabfe9313cbe2f6eb743deaf53.pdf

 

[Waher]

Judging from the quote, it looks like the Federal district court judge is being reviewed by the 9th Circuit on a "clear error" standard. Clear error is a hard standard to overturn because to quote Judge Posner:



https://pdfs.semanticscholar.org/68c7/74541f8623dabfe9313cbe2f6eb743deaf53.pdf

So that's a good thing for us?

 

[amm5061]

Judging from the quote, it looks like the Federal district court judge is being reviewed by the 9th Circuit on a "clear error" standard. Clear error is a hard standard to overturn because to quote Judge Posner:



https://pdfs.semanticscholar.org/68c7/74541f8623dabfe9313cbe2f6eb743deaf53.pdf

Betcha they overturn it anyway.

 

[Deleted member 67409]

So that's a good thing for us?

Yes. Appellate courts don't like messing with standards of review. Standards of review promote judicial efficiency, consistency, and predictability.

Betcha they overturn it anyway.

If I knew how judges decide, I sure as shit wouldn't be talking to you all, I'd be totally silent and running some dark web SCOTUS gambling website.

 

[Boston4567]

Yes. Appellate courts don't like messing with standards of review. Standards of review promote judicial efficiency, consistency, and predictability.



If I knew how judges decide, I sure as shit wouldn't be talking to you all, I'd be totally silent and running some dark web SCOTUS gambling website.

Facts are reviewed based on clear error, but issues of law are reviewed de novo. The trial judge did a damned good job of couching his findings in issues of fact, but at the end of the day, the question of whether a 30-round mag is protected by 2A is an issue of law. The 9th Circus will almost certainly overturn his ruling... hopefully setting up SCOTUS review

 

[Deleted member 67409]

Facts are reviewed based on clear error, but issues of law are reviewed de novo. The trial judge did a damned good job of couching his findings in issues of fact, but at the end of the day, the question of whether a 30-round mag is protected by 2A is an issue of law. The 9th Circus will almost certainly overturn his ruling... hopefully setting up SCOTUS review

Issues of law are not always reviewed de novo. Statutory interpretation is, but when the judge has discretion, like evidentiary matters or motions to dismiss or suppress or summary judgment, that's reviewed under the abuse of discretion standard or a unique dispositive motion standard that is very hard to overturn. Clear error is in between abuse of discretion and de novo.

Like I said, the language in the quote looks like the appellants are seeking the clear error standard, which is not reviewed de novo.

What you're talking about is a mixed standard of law and fact.

Edit: I will read the original decision and the appellants briefs tonight to get the clear, unadulterated answer.

 

[CatSnoutSoup]

Clearly what those of us in magazine restricted states, beyond California, need is a case that prompts SCOTUS review.
So I say bring on the conflicting opinions, sorry California gun folks.

Yes, selfish I know.

:emoji_tiger:

 

[AHM]

So I say bring on the conflicting opinions, sorry California gun folks.

As long as we have Alan Gura doing the heavy lifting...

 

[Bonesinium]

Issues of law are not always reviewed de novo. Statutory interpretation is, but when the judge has discretion, like evidentiary matters or motions to dismiss or suppress or summary judgment, that's reviewed under the abuse of discretion standard or a unique dispositive motion standard that is very hard to overturn. Clear error is in between abuse of discretion and de novo.

Like I said, the language in the quote looks like the appellants are seeking the clear error standard, which is not reviewed de novo.

What you're talking about is a mixed standard of law and fact.

Edit: I will read the original decision and the appellants briefs tonight to get the clear, unadulterated answer.

I’m sure you already know, but when it comes to guns, and especially in the 9th circuit, not a single one of those things matter. I’m not saying this in a confrontational way. I am saying that the courts can and will ignore all logic, facts, and precedent, “because guns”.

 

[Deleted member 67409]

I’m sure you already know, but when it comes to guns, and especially in the 9th circuit, not a single one of those things matter. I’m not saying this in a confrontational way. I am saying that the courts can and will ignore all logic, facts, and precedent, “because guns”.

That's great and all but that's your opinion. I'm trying to explain judicial standards of review, I'm not saying "THEY GON' AFFIRM Y'ALL!!! PLACE UR BETZ NOW!!!" Under clear error, the appellate court should give a lot of deference to the trial judge as a matter of judicial policy. Judicial standards of review vary in nuanced ways across courts but generally speaking, all appellate courts have three standards of review: de novo, which is best left for statutory interpretation because statutory interpretation is best left to the highest court, clear error, where the trial judge committed an overt error of fact or law, and abuse of discretion, where the trial judge impermissibly exercised discretion (judges have discretion in certain pockets of litigation, like allowing or excluding evidence). Just saying for future cases that come up.

So I pulled Judge Benitez's order and it was an order granting plaintiff's motion for summary judgment, which is a dispositive motion - summary judgment ends a civil case at the trial level when granted. I also pulled a recent 9th Circuit decision that was appealed at the summary judgment level and they review summary judgment on a de novo standard in the light most favorable to the non-moving party. For the curious, I pulled Nehad v. Browder, No. 18-55035, 2019 U.S. App. LEXIS 20590, at *10 (9th Cir. July 11, 2019) and Duncan v. Becerra, 366 F. Supp. 3d 1131 (S.D. Cal. 2019), the original decision.

I'm not sure why the appellants put in a quote that sounded like it was clear error, but Judge Benitez is being reviewed de novo.

 

[Dennis in MA]

So that's a good thing for us?

Sure, if you live in CA. Not applicable in MA.