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PaperclipPerfector  1yr ago (text post)   27144 thread views

Culture War Roundup for the week of September 25, 2023

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The Ninth Circus vs. VanDyke: Collegiality Edition

Duncan v. Bonta ('large' magazine ban) has had another order issued en banc. Like Duncan v. Bonta in 2021, the 9th Circuit has, to the surprise of no one with a pulse, issued a stay against gun rights.

About the only silver lining to that cloud from my perspective is a cheeky VanDyke dissent. And as you can guess when Hurwitz leads by trying to play cleanup and to bash the "rhetoric" of his colleagues (just like in the 2021 Duncan), this one's a doozy.

Where VanDyke's McDougall opinion included predictions of and draft copy for an en banc reversal that would find the Second Amendment covered nothing (which I almost thought would turn out pessimistic given Bruen, until the case was shoved to the lower court decided again that the Second Amendment covered nothing), this is 'just' an administrative stay during appeals, and normally such deep discussion of philosophy of law would be unnecessary and unexpected. Instead, VanDyke looks to the past in today's piece:

Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why...

"Comeback" cases reflect Ninth Circuit Rule 3.6 here. Butamay previously pointed out that he knew of literally no cases before where the 9th Circuit has taken a "comeback" case and made decisions at the en banc for an emergency stay rather than returning it to a normal appeal, and despite the majority's claims this is by-the-book it's also hard to miss that the ink on these books are so fresh. The "comeback" rules date back only to 2016. But that's just normal calvinball. Worse:

But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper— indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place.

After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone— not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—_including a death penalty case_. Priorities.

I'd be a little interested to have names, here, but it's not clear even this description gives enough detail to go digging: GO5.4(b) notices aren't covered by courtlistener or the 9th Circuit's website.

We have a process for suspending the rules, upon a vote of the entire court. See 9th Cir. General Order 12.11. But no judge tendered a Rule 12.11 request. Instead, this was handled off the books by a handful of judges. Which makes it even worse. This off-books approach allowed the would-be en banc advocates to pressure the panels to be “collegial,” and simultaneously concealed these conversations from the rest of the court. It also delimited the scope of the question to whether we would “bend the rules” and allow some exceptions in three specific cases, which prevented the entire court from considering the weightier question of whether, as an institution, we should be suspending our settled rules for “particularly important cases.” Such agreement—however procured—does not somehow confer legitimacy.

In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors?

To tl;dr: the 9th Circuit has broken its own rules on a case, of the exact sort of behavior normally considered a right-wing conspiracy theory, in order to more expediently fuck over the rights of American citizens, and this was not revealed for nearly three years.

Hurwitz's concurrence does not even contest this claim. Nor does any other part of the court.

I'm not going to make predictions, here. We are talking the same judges as the 2021 appeal and its effervescent logic -- judges willing to play so heavy-handed with the balancing test then will just as easily find historical relevance in their tea leaves -- but in turn there are some fun tactical considerations that might slow them. But on the gripping hand, the nature of this matter as an interlocutory review, leaves a lot of ways to diddle the schedule. There is no meaningful procedural appeal for a federal circuit court of appeals breaking its own rules, especially since the case has already gone back up and down from SCOTUS since. And there's no tort for being a rules-violating judge, even were judges not completely immune to lawsuit for their actions related to their jobs.

But one could understand why I'm very skeptical that Hurwitz's pretense this is 'just' an emergency stay will age well. And more broadly, to find that not only have the people in change of arbitrating the rules not only put a thumb on the scales -- long common knowledge -- but have broken and hidden the breaks from their own claimed process leaves serious doubt whether any one procedure in the 9th Circuit is available equally to all comers.

Well, that's just one court, albeit one covering more than a fifth of the country's populace.

New York v. FFLs

There's an interesting case going up to SCOTUS named Gazolla v Hochul, which was previously so far off everyone's radar that gun lawyers didn't spot it until Hochul wrote a vague and panicked tweet. It's not going to go anywhere -- it's a complicated mess asking for extraordinary relief of the sort SCOTUS never provides, while also being a bit nutty even by the standards of pro-gun legal buffs still trying to operate in New York after what happened to the NRA.

And while it's kinda funny in hindsight to see a nutty complaint allege a morass of problems amounting to infringement of the right to keep arms that ended up already coming true before the Court even reviewed the case, to which the state's response rests heavily on the claim that "The plain text of the Second Amendment does not cover the right to sell arms", that too is a little too common to be interesting and mostly a repeat of the Californian version back in Rhode v. Becerra.

To add insult to injury, Nigrelli did not even bother to issue state law required certification of the operational status of the ammunition background check system. NY PEN §400.02(2). The NYSP never did has not issued any ammunition background check form this entire past year, nor produce regulations for any administrative appeals process for denials of a firearm or ammunition background check. NY PEN §§400.03(2) and (6) and NY EXE §228(4)(a). The defendants repeatedly and persistently fail to comply with their own laws since the bills passed in June/July 2022 – an argument we repeatedly spell out. It defies logic that no judge, to date, has held the defendants to the limits and requirements of their own 2022 laws. [...]

The suit also alleges that the strict text of the law only allows Hochul and Nigrelli to put non-federal-firearms items through the state NICS system, leaving federal-firearms to direct FFL-to-NICS discussion, while Nigrelli and the FBI have cut all direct FFL access through the state to NICS. There's just a litany of this stuff: the laws required concealed carry permit holders to get training from certified courses where the course did not exist, for those wanting to buy a semiautomatic rifle to apply for a permit that did not exist, so on. In several cases, state police provided e-mails to individual FFLs or to the NSSF claiming they would not enforce the laws until relevant guidance was available, even as statutory deadlines were long-past, and while not provided that information consistently to all those covered, sometimes in contradictory ways.

Fine, he who makes the rules decides who has to obey them, anyone paying attention to this game knows that. Most states that have established mandatory time limits for background checks, as a similar matter, have often simply flat-out ignored them. What's new?

The state makes an error of federal law in this provision. There is no federal ammunition background check requirement or system. 18 U.S.C. §922(t) specifically and only relates to the transfer of “a firearm,” as that term is defined at federal law. It is illegal for a state to use or attempt to use the NICS federal background check system for an ammunition background check. 28 CFR §25.11. This point is briefed throughout our record.

Federal law specifically prohibits "state or local agencies', FFLs', or individuals' purposefully using the system to perform a check for unauthorized purposes" and gives punishment of "a fine not to exceed $10,000 and subject to cancellation of NICS inquiry privileges." Even to the extent state-run queries can be more expansive, as soon as they contact the FBI's NICS they must be limited to only firearms-as-defined-by-federal law (or explosives-as-defined-by-federal-law, in a way not relevant here). This was a hard-fought limit to the system, because gunnie groups (rightly!) feared that the early NICS would be misused; with marginal FFLs putting people they'd never sell a gun to through the system to trawl for embarrassing information, or to require people face daily NICS checks.

Now, Hochul claims that "the State Police are authorized to use state databases to conduct background checks for ammunition purchases, Penal Law § 400.02(2), and there is no reason to believe they will do otherwise." And she's right: even were the New York background check system's operators violating federal law, it's very far from clear how anyone could find evidence of it before summary judgement on the matter of ammunition. Except there's a few classes of guns that are not firearms by FFL/NICS rules but must receive a background check under New York law, and the web interface, the only working interface for the New York background check system, does not have a way to distinguish them. That's not proof, still -- given how poorly the system's worked so far, it's certainly possible that the New York background check system has forgotten to pass a lot of its requests to NICS! -- but while it might not be enough to it's certainly matched the low standards needed to push federal investigations in the past.

Except that it doesn't particularly matter. Even in an ideal case, this is the sort of thing that gets brushed over, simply because the rules aren't written for it. And it's very far from an ideal case, for one very blatant reason: federal law is the domain of attorneys general and the federal Department of Justice, whose lead is a man who previously reinterpreted the laws mandating destruction of certain NICS records to instead allow retention. He doesn't care.

Texas v. Ruger v. WellsFargo

Okay, well, no one would mess with Texas, would they? There's an interesting letter from Ruger today:

As you know, §2274.002 requires that any company who wishes to enter into a contract with a Texas governmental entity submit a written verification that it “(1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity.” On September 29, 2021, Wells Fargo provided such a written verification to the Office of the Attorney General of Texas. When this came to our attention, I wrote to Texas Attorney General Ken Paxton questioning the verification.”

As detailed in my letter, Ruger began working with Wells Fargo in September 2018. Our business relationship included a credit facility and banking operations (operating accounts, share repurchases, credit cards, etc.). However, in July 2021, less than three years after our relationship with Wells Fargo began—and just two months before Wells Fargo provided the AG's office with its verification — our local contact at Wells Fargo informed our Chief Financial Officer that ‘Wells Fargo would not extend any new credit to us and therefore would not renew our credit line. (due to expire in September) due to “reputational and headline risk” related to our industry. ‘When pressed about these “concerns,” our Wells Fargo contact cited our manufacture of modern sporting rifles as a “red flag.” ...

Well, perhaps there was some other, more serious cause?

As a result of my letter, the Attorney General's office asked Wells Fargo to provide further explanation in support of its verification, which Wells Fargo did not share with us. Ruger ultimately filed a Texas Public Information Act request to learn of Wells Fargo’s ‘explanation, which prompted the Texas AG to notify Wells Fargo of the request and invite a response. Wells Fargo, through counsel, objected to production of its explanatory letter, claiming that is rationale for refusing to renew Ruger’s credit facility constituted “trade Secrets” and “confidential commercial or financial information .. the release of which would cause Wells Fargo substantial competitive harm.”

Perhaps Wells Fargo was only discriminating two months before issuing a letter to the Texas AG:

The problems with this assertion are many, beginning first with Wells Fargo’s own publication confirming its policy of discrimination. In its Environmental and Social Risk Management Framework published in 2022, Wells Fargo outlines its then-new ESRM policy, which specifically targets “{t]hose making, selling, or distributing arms or armaments that require licensing”. Wells Fargo’s ESRM Framework further explains: We conduct additional environmental and social due diligence on clients who manufacture, distribute, or sell arms and armaments. Through this due diligence, we assess various factors which may include relevant licensing and regulatory compliance, types of product offerings, operating procedures, reputation risk incidents, human rights issues, relevant international compliance, and implementation of risk mitigation practices

Who would expect WellsFargo, of all people, to just straight-up lie to regulators and customers, in order to receive material benefits?... Uh, other than anyone who was paying attention in 2016.

Is the problem here that Ken Paxton is insufficiently prone to using state power for political ends? That Texas does not have conservative legal actors or groups? That some review at some level would prevent the state from enforcing this law, after decades of heavily-enforced policy by other states? I would perhaps believe that such regulations only operate with a large supply of inside-industry whistleblowers, except this example is visible to the naked eye, and many left-leaning equivalents have hit fields facing as or more extreme political filtering against them.

The cynical answer’s that quantity can be a quality all of its own, and one made easier when it's other people's money. As a result, a government hoping to use this pressure must be willing to risk serious harm to its own citizens.

(But, again, Ken Paxton.)

The more cynical option is that it’s a paper tiger; the threat has no value in this context but to make a group Harvel Their Greengrocer, and that only to the extent writing the paperwork is cheaper and easier than defying the law outright. But whether those reasons are specific to progressive goals or universal, that’s a lesson one would hope people were in less a hurry to teach.

Is the problem here that Ken Paxton is insufficiently prone to using state power for political ends? That Texas does not have conservative legal actors or groups? That some review at some level would prevent the state from enforcing this law, after decades of heavily-enforced policy by other states? I would perhaps believe that such regulations only operate with a large supply of inside-industry whistleblowers, except this example is visible to the naked eye, and many left-leaning equivalents have hit fields facing as or more extreme political filtering against them.

The cynical answer’s that quantity can be a quality all of its own, and one made easier when it's other people's money. As a result, a government hoping to use this pressure must be willing to risk serious harm to its own citizens.

(But, again, Ken Paxton.)

Possibly relevant here is that Texas’s anti-ESG crusade is headed up by Glenn Hegar, who is currently in a feud with Ken Paxton over whether he should receive back pay for the time he was suspended. It is the kind of procedural machiavellianism that Hegar would pull to quietly prevent Ken Paxton effectively enforcing the law in this particular case to as a way of generating dirt on a potential rival(both men are thought to have their eye on John Cornyn’s senate seat).

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