Young v. Hawaii Handgun Open Carry Pre-Game Analysis II

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What is this en banc oral argument going to be about?

Over a year and a half ago, I wrote my first Pre-Game Analysis of Young v. Hawaii but the en banc case was stayed pending the decision by SCOTUS in New York State Rifle and Pistol Association v. New York City. That case was dismissed as moot, which put Young v. Hawaii back into play. My analysis has changed somewhat since then. For one thing, we have over a year and a half of decisions by the judges which have given more insight in how they are likely to vote and we have two potential en banc judges who took senior status. As they were not judges who sat on the Young v. Hawaii three-judge panel, Judges Bybee and Bea are not eligible to sit on the Young v. Hawaii en banc panel.

The final analysis remains the same. Six votes are needed to win.

En banc panels are not bound by any prior panel decisions and so theoretically it can be about anything the en banc panel wants it to be.

This is an extremely important case for those of us in California because what this en banc panel decides could very well bind the decision of the three judges assigned to my California Open Carry appeal, Charles Nichols v. Gavin Newsom et al (formerly v. Gerald Brown Jr., et al).

The United States Supreme Court recently issued a unanimous decision that reversed a 9th circuit court of appeals decisions in which the three-judge panel went outside the argument made by the two sides of the lawsuit in making its decision. Judges are not supposed to take sides (stop laughing) even though they do it all of the time and do so without consequence.

I hope that most of the judges who will sit on the en banc panel will take that decision to heart but these judges also know that if they stray outside of the arguments made by the opposing sides, it isn’t as if Justice Ginsburg is going to fly out from D.C., and punch the panel in the face should it take sides and go outside the argument made by the two sides to favor one side.

I hope there will be a reluctance of a majority of the panel to stray from the procedural body of law that applies to three-judge panels. To do so would invite three-judge panels to disregard what is now, in most cases, decades-old procedural law decisions that govern the making of their decisions.

One of the aspects of the procedural law constraints is that Mr. Young’s case is limited to handguns. Mr. Young’s Complaint did not seek to openly carry long guns. As such, the three-judge panel deciding his appeal was unable to decide whether or not there is a right to keep and bear long guns outside of one’s home.

The parties in this appeal are free to argue long guns before the en banc panel. I don’t think they will but nothing prevents them from doing so.

The three-judge panel did not issue a decision on concealed carry because it was prohibited from doing so because an eleven-judge en banc panel had already held there is no right to concealed carry back in 2016 and Mr. Young’s en banc panel was bound by that decision.

Neither Mr. Young nor the Hawaii defendants petitioned the court to review that part of the decision even though Mr. Young’s attorney stated that he was arguing on appeal, in order to preserve on appeal, that the State was required to provide concealed carry as an alternative.

Failure to file a petition regarding concealed carry would normally preclude the panel from considering concealed carry. But as I said, this en banc panel is not bound by any prior en banc panel but to consider concealed carry would be an invitation to three-judge panels to disregard prior three-judge panel decisions they don’t like and would normally be bound by.

It would be silly for Mr. Young’s attorneys to turn his lawsuit into a concealed carry lawsuit at this late juncture. If Mr. Young’s attorney were to turn his appeal into a concealed carry appeal during the looming en banc oral argument then that would make it easy for the en banc panel to simply hold that concealed carry is not a right as it did in the Peruta v. San Diego en banc decision back in 2016. And the US Supreme Court would deny the cert petition just as it denied the Peruta v. San Diego cert petition in 2017.

And so, if the Young v. Hawaii en banc oral argument is about anything, it is about the Open Carry of handguns.

If I were Mr. Young’s attorney arguing his appeal then I would file a Declaration stating that Mr. Young seeks to openly carry long guns. I would also remind the court that Mr. Young’s Complaint was supposed to be liberally construed in his favor to include long guns.

I admit that doing so would be a “Hail Mary” attempt but the attempt costs him nothing and the attempt would make it less likely that the en banc panel would construe any misstep made during oral argument by Mr. Young’s attorney.

If I were Mr. Young’s attorney then my argument would be consistent with what he argued before the three-judge panel which turned out to be consistent with what the D.C., circuit held in its Wrenn v. D.C., opinion. Namely, the Heller decision shields the right to Open Carry, states can ban concealed carry as per the Heller decision, but concealed carry is an alternative should the panel engage in judicial interest balancing and hold that Intermediate Scrutiny applies to the case.

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Should Mr. Young make that argument and lose then his loss would create a clear circuit split between the 9th and District of Columbia circuits. Despite having clear circuit splits, the primary route by which the US Supreme Court grants cert petitions, all of the “carry” cert petitions filed with the Supreme Court have been limited to handguns, and the only cert petition filed by a lawyer (Norman v. Florida) did not argue there was a circuit split or argue that his was a case of national importance, the other route by which SCOTUS grants cert petitions.

Looking Back

Four years ago, an eleven-judge panel of the 9th circuit court of appeals published an opinion that held there is no right to concealed carry protected by the Second Amendment.

The panel explicitly said it was not deciding whether or not there is a right to openly carry a handgun (Open Carry) because the plaintiffs in the two consolidated cases argued that states can ban the carrying of rifles, shotguns, and handguns unless the handguns are carried concealed and only if one has a government-issued permission slip to carry the concealed handgun.

In the words of National Rifle Association Lawyer, Paul Clement, governments may “impose” concealed carry on the American people even though as United States Solicitor General he argued before the United States Supreme Court in District of Columbia v. Heller that concealed carry is not a right and can therefore be banned.

All nine justices of the US Supreme Court agreed that concealed carry is not a right and can be prohibited. The majority decision said so several times, the two dissents by four of the justices each said they agreed with the five justices in the majority that concealed carry is not a right and can be banned.

But such is the nature of lawyers. Around 40 years ago when I took most of my law courses, the instructor told the class that if they were unwilling to argue in one case that two things cannot both be true, and then turn around and argue that these very same two things have always been true, are true, and will always be true then they should not become a lawyer.

I did not become a lawyer because I hate lies. Imagine how I must feel about liars, especially those who are paid to lie.

There have been more than a dozen civil concealed carry lawsuits in the 9th circuit that have argued since the Heller decision was published in 2008 that they have a right to concealed carry protected by the Second Amendment.

All of these concealed carry lawsuits have lost.

Six months or so after I filed my lawsuit challenging California’s ban on openly carrying loaded firearms (amended to include challenges to California’s Unloaded Open Carry bans), Mr. George Young Jr., filed a lawsuit in Hawaii challenging the denial of his applications for a permit to carry a handgun openly or concealed, he didn’t care which.

If Mr. Young had simply sought a permit for concealed carry then his appeal would have been dismissed along with the Baker’s Dozen of concealed carry lawsuits that lost in this circuit.

No criticism of Mr. Young, but he is not an attorney. Although it would not have mattered even if he had been a lawyer given who the judge was assigned to his case. The district court judge quickly dismissed his lawsuit with prejudice even though the Federal Rules of Civil Procedure require that Mr. Young be allowed to file an amended complaint unless his lawsuit was frivolous or incapable of amendment.

Mr. Young filed his notice of appeal in December 2012. The district court judge in my California Open Carry lawsuit did not issue his final judgment against me until May 1, 2014. And that was only after I told him that I was standing by my Second Amended Complaint and filed an application with the Chief Judge for the district because the district court judge did not issue his decisions on my motion for partial summary judgment or the state’s motion for judgment on the pleadings within the time limit set by the Central District of California. District Court judge Otero (now retired) went outside the argument made by the State’s attorney and held that there is no right to even possess a firearm (a conclusion contrary to both the California Supreme Court and the United States Supreme Court). According to Judge Otero, firearms are no different from crystal meth and people who carry firearms are no different from people who sell crystal meth. He overlooked that even dealers in crystal meth have certain rights and those rights, such as the Fourth Amendment and Due Process rights, are protected rights.

Mr. Young was able to obtain a lawyer on appeal. His notice of appeal being filed before my notice of appeal gave him priority in oral argument and submission for a decision. Mr. Young’s appeal was argued and submitted three days before I argued my appeal. Since both cases involve the same threshold question – “Does the Second Amendment extend outside the interior of our home?” the submission of my appeal for a decision was vacated 12 days later because the decision in Mr. Young’s appeal is binding on my three-judge panel.

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My appeal is not stayed. The submission of my appeal for a decision is vacated pending the Mandate being issued in George Young Jr., v. Hawaii.

There is a third, NRA concealed carry lawsuit on appeal. That appeal, unlike mine, is stayed. When the mandate is issued in Young v. Hawaii then my appeal immediately becomes taken under submission for a decision which makes the decision in my appeal binding on all other cases in the 9th circuit.

Mr. Young won a favorable decision before a sharply three-judge panel. Frankly, given who the three judges on the panel were, I thought for certain he would lose because of prior decisions they had written.

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In any event, his three-judge panel decision was vacated (no longer exists) when the active judges of the 9th circuit court of appeals voted to rehear his appeal before an eleven judge limited en banc panel.

Eight of the ten of President Trump’s nominees who were confirmed to the 9th circuit court of appeals were not on the court at the time and so they will not appear on the eleven-judge limited en banc panel that will hear Mr. Young’s appeal on September 24th.

The only way that could happen is if there were subsequent vacancies on the ten judges who were randomly drawn plus their alternates, and occurred at a time when Mr. Trump’s additional nominees were eligible to be drawn as replacement judges.

We will know who these ten judges for the limited en banc panel are on September 14th. The only judge we know for certain that will sit on the limited en banc panel is the Chief Judge, Sydney Thomas. Notwithstanding a couple of extremely remote scenarios, such as Justice Kagan deciding to sit in his place.

The following is the pool of eligible judges from which ten were randomly picked on February 11, 2019.

There are eleven judges who will, or likely will, vote in favor of Hawaii: Clifton, Graber, McKeown, Fletcher, Paez, Rawlinson, Nguyen, Watford, Hurwitz, Owens, and Friedland. There are six “Unknown” judges, although three of these unknowns lean ever so slightly in favor of Young: Chief Judge Thomas, Wardlaw, Gould, Berzon, Murguia, and Christen.

Two of the three judges who sat on the Young three-judge panel are likely to stand by their decision and vote for Young: O’Scannlain and Ikuta. Add to their number Callahan, Smith, and Ryan D. Nelson, and that makes five likely votes for Young. In short, the breakdown is 11 against, six unknown, and five in favor of Young. Bennett did not participate in the en banc vote which strongly suggests that he recused himself and will not be on the en banc panel.

Please note that every one of these judges on the following list, with the exception of Ryan D. Nelson, was confirmed with the approval of both home-state senators. Therefore, their choice reflects more the politics, or in most cases knee-jerk obsequiousness of Republican senators to Democrat nominees. Democrat senators vote against judges they don’t agree with. Republican senators bend over and grab their ankles for Democrat presidents when it comes to nominating judges.

Diarmuid O’Scannlain (Senior status) – Likely vote for Young. He wrote the divided three-judge panel decision in favor of George Young Jr.

Richard R. Clifton (Senior status) – Will vote in favor of Hawaii. He dissented in the divided three-judge panel decision in favor of Hawaii.

Susan P. Graber – Clinton – Will vote in favor of Hawaii. (Joined in Peruta en banc majority)

Margaret McKeown – Clinton – Will vote in favor of Hawaii. (Joined in Peruta en banc majority)

Kim McLane Wardlaw – Clinton – Unknown. In 2012, Judge Wardlaw properly reversed and remanded a district court judgment because the district court judge relied on a decision from before Heller, coupled with the fact that the prior “Decision did not address the question of whether § 922(g)(9) [misdemeanor crime of domestic violence] violates the Second Amendment … ” Judge Wardlaw is a better judge than Clifton every day of the week and twice on Sunday.

William A. Fletcher – Clinton – Will likely vote in favor of Hawaii. (He wrote the Peruta en banc majority)

Ronald M. Gould – Clinton – Unknown to leans in favor of Young.

Richard Paez – Clinton – Will likely vote in favor of Hawaii. (Joined in Peruta en banc majority)

Marsha S. Berzon – Clinton – Unknown to leans slightly in favor of Young. In the oral argument for Mehl v. Blanas, she said she was bound by the decision in District of Columbia v. Heller. One of her fellow judges then reminded her that this is a concealed carry case.

Johnnie B. Rawlinson – Clinton – Will likely vote in favor of Hawaii.

Consuelo Callahan – G.W. Bush – Will likely vote in favor of Young. (Peruta dissent)

Milan Smith – G.W. Bush – Will likely vote in favor of Young.

Sandra Segal Ikuta – G.W. Bush – Likely vote for Young. She joined the divided three-judge panel decision in favor of George Young Jr.

Mary H. Murguia – Obama – Unknown

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Morgan Christen – Obama – Unknown to leans slightly in favor of Young.

Jacqueline Nguyen – Obama – Will likely vote in favor of Hawaii.

Paul J. Watford – Obama – Will likely vote in favor of Hawaii.

Andrew D. Hurwitz – Obama – Will likely vote in favor of Hawaii.

John B. Owens – Obama – Will vote in favor of Hawaii. (Joined in Peruta en banc majority)

Michelle Friedland – Obama – Will vote in favor of Hawaii.

Mark J. Bennett – Trump – Did not participate in the en banc vote and likely recused himself. If he did not then he will be a vote against Young if he is on the panel. I assume he recused himself.

Ryan D. Nelson – Trump – Will likely vote in favor of Young.

Chief Judge Sidney R. Thomas (appointed by Clinton) is an unknown. My sense is that if he were the lone judge deciding the case then he would hold that a law that allows Loaded Open Carry outside of cities while requiring Unloaded Open Carry inside of cities does not violate the Second Amendment. He said as much in his dissent in the Peruta v. San Diego three-judge panel opinion.

The 9th circuit court of appeals en banc report goes back to December of 2017. Here are the 22 judges that were in the Young v. Hawaii en banc pool along with the number of times they appear as a judge on an en banc panel in the online en banc report.

The last two judges on the list are senior judges. They are only eligible to be in an en banc pool if they sat on the three-judge panel.

WATFORD 10, Ikuta 8, M. SMITH Jr. 7, Callahan 7, Berzon 7, W. Fletcher 6, WARDLAW 5, RAWLINSON 5, Nguyen 5, Christen 4, McKeown 3, GRABER 3, FRIEDLAND 3, BENNETT 3, OWENS 2, MURGUIA 2, Miller 2, Hurwitz 2, GOULD 2, R. Nelson 2, O’SCANNLAIN 1, CLIFTON 1

The ten en banc panel judges are supposed to be randomly drawn from the pool of eligible judges (active judges plus senior judges who sat on the three-judge panel). The above frequency distribution looks, at first glance, to be not random, because, in a random drawing, each of the eligible judges would have an equal probability of being picked, and being picked for one en banc panel would not effect the probability of being picked for a subsequent en banc panel.

Nevertheless, considering a hypothetical panel based on the above, that panel would consist of an eleven-judge en banc panel with the ten “randomly chosen” judges being: WATFORD, Ikuta, M. SMITH Jr., Callahan, Berzon, W. Fletcher, WARDLAW, RAWLINSON, Nguyen, and Christen.

It will be interesting to see how well the actual panel compares to the “statistically likely” panel.

Looking Ahead

We will know who the judges are on September 14th. The oral argument will take place on September 24th. We should have an en banc decision within 5 months to a year.

If the en banc panel holds that the Second Amendment right is confined to the inside of the home then I lose my Second Amendment claim. Mr. Young’s lawsuit lives or dies based on that threshold conclusion of law. My California Open Carry lawsuit has other claims and seven issues raised on appeal. The State of California already conceded three of those seven issues on appeal or forfeited via Appellee waiver by not defending them in its Answering brief on appeal.

One of those claims is that I have a right to keep and bear arms in the curtilage of my home under both the Second Amendment and under the Fourteenth Amendment, and if the government can require a permission slip, I have a right to that permission slip even if the right is limited to my home, which includes the curtilage of my home.

In its answering brief, the State of California asked the court of appeals to disregard the curtilage of my home even though it said the same thing in my case in the district court. The district court, despite its palpable dislike for my California Open Carry lawsuit, rejected the State’s “defense” to the extent that it was putting on a defense and held that all I have to do to violate the law is to step outside my home with a loaded firearm.

In short, all I need to win is for my three-judge panel or Young’s en banc panel to conclude that the right to keep and bear arms includes the right to keep and bear arms in the curtilage of our homes.

And, of course, if Mr. Young loses and I lose, I still get to file an en banc petition. One thing I have going for me is I have a much better pool of potential en banc judges than Mr. Young had when his ten judges were drawn.

To add icing to the cake, both Mr. Young and I can file a petition for a Full-Court rehearing, should we lose en banc, and 9 of 10 of Mr. Trump’s appointees to the 9th-circuit court of appeals are no doubt eager to weigh-in on a Second Amendment case, not to mention the ~18 judges who were not selected for Mr. Young’s limited en banc panel.

It ain’t over until the fat lady sings.

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