Fed Judge rules that CA 10-day waiting period violates the Second Amendment, Rejects State's Stall Tactics
By Martin Hill
LibertyFight.com
November 20, 2014


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A federal judge in Central California has rejected the California Attorney General's request to stay a judgment preventing the state from enforcing the 10-day waiting period. Senior United States District Judge Anthony W. Ishii, a Bill Clinton appointee, began:

"This case involved a Second Amendment challenge to statutes that imposed a 10-day waiting period between the time of purchase and time of possession of a firearm. Following a bench trial, the Court issued findings of fact and conclusions of law. The Court held that the 10-day waiting period violated the Second Amendment as applied to three classes of individuals. The Court also enjoined Defendant from enforcing the 10-day waiting period with respect to the three classes of individuals. However, as suggested by Plaintiffs, the Court stayed its order for a period of 180 days. Defendant later filed a motion to amend judgment, a notice of appeal, and a motion for a stay pending appeal. For the reasons that follow, Defendant's motions will be denied."
Ishii continued
"The Court has determined that the 10-day waiting period laws, as applied to those who have a Carry Concealed Weapons permit ("CCW"), those who already have a firearm, or those who have a firearm and a Certificate of Eligibility ("COE"), violate the Second Amendment. It has been held that a deprivation of constitutional rights, "for even minimal periods of time, unquestionably constitutes irreparable injury."... It has been recognized that enforcement of an unconstitutional law is contrary to the public interest. Because the waiting period law is unconstitutional with the respect to the three as applied classes, this factor weighs against a stay... Because the waiting period laws violate their constitutional rights, the named Plaintiffs and all those who fit within the as-applied classes will suffer irreparable injury if a stay pending appeal is granted...It has been recognized that enforcement of an unconstitutional law is contrary to the public interest... Combined with the public interest that weighs against granting an injunction, the Court does not find that issuing a stay is appropriate. Defendant's motion for a stay under Rule 62(c) will be denied."

Ishii, a former city attorney, public defender, and municipal court judge was nominated by Bill Clinton and approved by the U.S. Senate in 1997. He ruled against California Attorney general Kamala Harris, who is the defendant in this case. Harris was sued by Jeff Silvester and other Plaintiffs including The Calguns Foundation and the Second Amendment Foundation, in the U.S. Eastern District Court of California. In August of this year the 10-day waiting period was found to be unconstitutional, but a 180 day stay was ordered. California sought to extend that stay until the appeal was resolved, and Harris, a 50 year old Democrat who has been Attorney General since 2011, attempted all sorts of excuses about budget issues and staff shortages in an attempt to thwart the ruling. They were rejected out of hand by Ishii:

"The problem is that Defendant believes that other projects are deserving of greater priority. There is no description of what these critical projects are or when the deadlines might be, nor is there an explanation of why outside contractors cannot be utilized for some of those projects, nor is there an explanation of why computer personnel from different departments or agencies cannot be utilized. A bench trial has concluded, and a law that is actively being enforced has been found to be unconstitutional... Further, the Department of Justice has had millions of dollars appropriated to it, which should be sufficient to comply with Court's order without further legislative involvement. Defendant has the personnel within BOF to make changes to the background check system. Defendant just does not want to reassign those personnel to change the background check at this time. Insufficient information has been provided to the Court as to why reassignment is so undesirable. Furthermore, it is unclear why other Department of Justice (other state agencies) computer personnel cannot be utilized to work on the other "critical projects" or on the Court's injunction."

It's no small irony that this ruling came from a judge appointed by Clinton, who is a notorious opponent of gun rights. Ishii did state that "The Court agrees that Second Amendment law is evolving" but that "the Court is satisfied that this case raises "serious legal questions." The court continued to outline the reasons in detail:

"Defendant argues that the relevant factors all favor a granting a stay. First, this case is the first of its kind to challenge a firearm waiting period law. The law surrounding the Second Amendment is evolving, and issues such as of what sort of waiting period a state may impose on the acquisition of a firearm, and on what grounds, are of nationwide importance. The Ninth Circuit could reach different conclusions than those reached by the Court. Thus, this case involves "serious legal questions."

"...the public interest does not lie in favor of a stay. When the state is asserting harm, there is no interest in enforcing an unconstitutional law.

Legal Standard- Federal Rule of Civil Procedure 62(c) allows a district court to suspend, modify, restore, or grant an injunction during the pendency of an appeal. See Fed. R. Civ. P. 62(c); Natural Res. Def. Council, Inc. v. S.W. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). "A stay is not a matter of right, even if irreparable injury might otherwise result," rather, a stay is "an exercise of judicial discretion"

" The Court agrees that Second Amendment law is evolving, although the framework for evaluating laws under the Second Amendment has now been established. See United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013). In the absence of an argument on this point from Plaintiffs, the Court is satisfied that this case raises "serious legal questions."

In this case, the Court determined that the 10-day waiting period laws burden the Second Amendment right to keep and bear arms because they prohibit the exercise of that right for all purposes with respect to a newly purchased firearm. The Court also determined that the 10-day waiting period laws have caused additional expense and inconvenience, and that they have caused individuals to forego exercising their Second Amendment rights. The Court examined the historical evidence submitted by the parties and concluded that there were no comparable laws in existence during the relevant historical periods, and that waiting period laws exist today in only a distinct minority of States. The Court also found that no evidence justified a 10-day waiting period under intermediate scrutiny.7 Therefore, the Court has determined that the 10-day waiting period laws, as applied to those who have a Carry Concealed Weapons permit ("CCW"), those who already have a firearm, or those who have a firearm and a Certificate of Eligibility ("COE"), violate the Second Amendment. It has been held that a deprivation of constitutional rights, "for even minimal periods of time, unquestionably constitutes irreparable injury."

Because the waiting period laws violate their constitutional rights, the named Plaintiffs and all those who fit within the as-applied classes will suffer irreparable injury if a stay pending appeal is granted.8

Conclusion
When an applicant relies on "serious legal questions," she must demonstrate that the balance of equities tips sharply in her favor. See Leiva-Perez, 640 F.3d at 966; Tribal Village of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir. 1988); Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983). Given the on-going constitutional violations that are occurring to the likely thousands of Californians by operation of the 10-day waiting period laws, the Court cannot conclude that the balance of equities tips sharply in Defendant's favor. Combined with the public interest that weighs against granting an injunction, the Court does not find that issuing a stay is appropriate. Defendant's motion for a stay under Rule 62(c) will be denied.

Kamala Harris, whose personal website touts that she is "Fighting for California," was re-elected in November. The State of California Department of Justice website states that Kamala "is the first woman, the first African American, and the first South Asian to hold the office in the history of California... As chief law enforcement officer for the state, Attorney General Harris has focused on combating transnational gangs that are trafficking guns, drugs, and human beings throughout California... Attorney General Harris has worked to increase the adoption of technology and data-driven policing to assist law enforcement in the efficient investigation and prosecution of crime, and has traveled to every region of California to expand partnerships with local law enforcement."

This case is JEFF SILVESTER, et al., Plaintiffs v. KAMALA HARRIS, Attorney General of California, and DOES 1 to 20, Defendants; CASE NO. 1:11-CV-2137. The November 20th ruling can be found here: AWI SAB ORDER ON DEFENDANT'S MOTION TO STAY AND MOTION TO ALTER JUDGMENT.

RELATED:

  • CalGunsFoundation.org: Federal Judge Rules Against California's Bid to Delay End of Gun Waiting Periods for Some
  • SAF.ORG: Second Amendment Foundation
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    — Martin (@LibertyFight) November 21, 2014


    Martin Hill is a Catholic paleoconservative and civil rights advocate. His work has been featured in the Los Angeles Daily News, San Gabriel Valley Tribune, The Orange County Register, KNBC4 TV Los Angeles, The Press Enterprise, LewRockwell.com, WhatReallyHappened.com, Infowars.com, PrisonPlanet.com, Economic Policy Journal, TargetLiberty.com, FreedomsPhoenix, Haaretz, TMZ, Veterans Today, Jonathan Turley blog, The Dr. Katherine Albrecht Show, National Motorists Association, AmericanFreePress.net, RomanCatholicReport.com, WorldNetDaily, HenryMakow.com, OverdriveOnline.com, Educate-Yourself.org, TexeMarrs.com, Dr. Kevin Barrett's Truth Jihad radio show, Strike-The-Root.com, Pasadena Weekly, ActivistPost.com, Los Angeles Catholic Lay Mission Newspaper, KFI AM 640, IamtheWitness.com, Redlands Daily Facts, SaveTheMales.ca, BlackBoxVoting, The Michael Badnarik Show, The Wayne Madsen Report, Devvy.com, Rense.com, FromTheTrenchesWorldReport.com, BeforeItsNews.com, The Contra Costa Times, Pasadena Star News, Silicon Valley Mercury News, Long Beach Press Telegram, Inland Valley Daily Bulletin, L.A. Harbor Daily Breeze, CopBlock.org, DavidIcke.com, Whittier Daily News, KCLA FM Hollywood, The Fullerton Observer, Antiwar.com, From The Trenches World Report, and many others. Archives can be found at LibertyFight.com and DontWakeMeUp.Org.



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