Judge Benitez Sets Time Limits for Briefs on California Assault Weapon Ban

Judge Benitez Sets Time Limits for Breifs on California Assault Weapon Ban (Dave Workman)

U.S.A.-(AmmoLand.com)-– On August 15, 2019, the San Diego Gun Owners Political Action Committee, James Miller, and others filed a lawsuit against then California Attorney General Beccera, challenging the constitutionality of the California “assault weapon” ban.  As the case evolved, it became known as Miller v Bona.

Here is a summation from the complaint filed on August 15, 2019:

1. This is a facial and as applied constitutional challenge to California Penal Code §§ 30515(a)(2) and 30515(a)(5), California Code of Regulations § 5471, subdivs. (b), (n), and (p), and Defendants policies, practices, customs, and enforcement of said law, which define and prohibit certain firearms as “assault weapons” solely because they feature “large-capacity” magazines (capable of holding more than ten rounds of ammunition) as defined by Pen. Code § 16740 and regulated under the now-enjoined Penal Code § 32310. Duncan v. Becerra,Case No. 3:17-cv-1017-BEN-JLB (ECF No. 87). Subdivisions (a)(2) and (a)(5) of Penal Code § 30515 violate the Second Amendment to the United States Constitution by prohibiting law-abiding citizens, including these individual plaintiffs, from obtaining, acquiring, possessing, manufacturing or transferring firearms in common use for lawful purposes such as self-defense inside and outside the home,competition, sport, and hunting.

The state of California fought the lawsuit with all the tools at its disposal. Numerous motions were filed. The historical evidence and arguments presented by both sides were extensive. There were delays because of Covid 19.  In the end, Judge Benitez, citing the 1939 Miller case, Heller and McDonald, as well as Caetano, decided in favor the plaintiffs.

Judge Benitez ruled AR15-type rifles and others defined as “assault weapons” were both common and well suited for militia use and use by individuals for defense of self and others, as well as for other legal purposes. Therefore, the California ban was unconstitutional.

Judgment was granted  in favor of the Plaintiffs on June 4, 2021:

IT IS HEREBY ORDERED that:

1. Defendant Attorney General Rob Bonta, and his officers,  agents, servants, employees, and attorneys, and those persons in active concert or  participation with him, and those duly sworn state peace officers and federal law  enforcement officers who gain knowledge of this injunction order or know of the existence  of this injunction order, are enjoined from implementing or enforcing the California Penal  Code §§ 30515(a)(1) through (8) (defining an “assault weapon” by prohibited features),  30800 (deeming those “assault weapons” a public nuisance),30915 (regulating those  “assault weapons” obtained by bequest or inheritance), 30925 (restricting importation of  those “assault weapons” by new residents), 30945 (restricting use of those registered  “assault weapons”), and 30950 (prohibiting possession of those “assault weapons” by minors)  and the penalty provisions §§ 30600, 30605 and 30800as applied to “assault weapons” defined  in Code §§ 30515(a)(1) through (8).

2.Defendant Attorney General Rob Bonta shall provide forthwith, by personal service or  otherwise, actual notice of this order to all law enforcement personnel who are responsible  for implementing or enforcing the enjoined statute. Within 10 days, the government shall  file a declaration establishing proof of such notice. Alternatively, the parties may file  a stipulation.

IT IS SO ORDERED.Dated: June 4, 2021

On June 21, 2021, a three-judge panel of the Ninth Circuit stayed Judge Benitez’s order until the outcome of the case of Rupp v Bonta was resolved.

On June 28, 2022, following the Supreme Court decision on NYSR&PA v Bruen, the Supreme Court granted cert to Rupp v Bonta, vacated the previous Ninth Circuit decision, and remanded the case back to the Ninth;”Circuit to be reheard. On August 1, 2022, the Ninth Circuit sent the Miller v Bonta case back to Judge Benitez to be re-heard under the specific guidance issued in the Bruen decision.

The plaintiffs filed a clear and straightforward brief. They claimed the evidence had already been heard, Bruen only clarified what was already decided in Heller, and judgment should be swift and in their favor.

From Miller (Plaintiffs’) brief:

Plaintiffs James Miller, et al. (“Plaintiffs”) hereby submit this brief addressing New York State Rifle & Pistol Ass’n, Inc.v. Bruen, 597 U.S. ___, 142 S.Ct. 2111 (Jun. 23, 2022)(“Bruen”)pursuant to this Court’s Order of August 8, 2022 [ECF 125].

Bruen does not change the outcome of this case. Instead, Bruen vindicates this Court’s previous application of the “Heller test” and establishes that Plaintiffs must prevail in their challenge to the State’s Assault Weapons Control Act(“AWCA”).

In Bruen, the Court reasserted principles it clearly applied in Heller.There can now be no dispute over the proper approach to evaluating Second Amendment claims. First, the Court must determine whether “the Second Amendment’s plain text covers an individual’s conduct” that is being restricted by a challenged law or policy. Bruen, 142 S. Ct. at 2129–30. Second, if the answer is yes,the conduct is presumptively protected, and the burden then falls to the government to justify the challenged restriction by “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”Id. at 2130. If the government cannot make this demonstration, the restriction is unconstitutional, full stop.No interest-balancing or levels-of-scrutiny analysis can or should be conducted. Id. at 2127.

The California government argued the Bruen decision changed everything. Everything had to start all over. They would need extensive time to hire historians to do extensive research which could not be rushed. They needed at least seven months.

From the California Government (defendant’s) brief:

Plaintiffs may contend here that further proceedings to apply Bruen are unnecessary because the Court can summarily rule in favor of Plaintiffs under the Heller common-use analysis set forth in the Court’s original ruling.See Miller, 542 F. Supp. 3d at 1020–23. But this Court’s application of “the Heller test” was based on a view that Heller and United States v. Miller, 307 U.S. 174 (1939), extended Second Amendment protection to “weapons that may also be useful in warfare.” Miller, 542 F. Supp. 3d at 1020 (citing Miller, 307 U.S. at 178) (emphasis added). That is not the same as the text-and-history standard required by Bruen. Bruen suggests that this view is no longer correct, as it repeatedly confirms that self-defense (and not militia service) is the “central component” of the right protected by the Second Amendment. Bruen, 142 S. Ct. at 2133 (quoting McDonald v. City of Chicago, 561 U.S. 742, 767(2010)); see also id.at 2125 (noting that Heller and McDonald“held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense”); id.at 2128 (same).15

The California government said they did not seek to delay the proceedings and then requested to delay the proceedings for a minimum of seven months, until March 3, 2023.

Judge Benitez did not grant them seven months. He allowed 45 days for new briefs to be submitted (until mid-October). Then another 15 days for briefs to be submitted in response to those briefs (end of October 2022).  From the court record:

Minute Entry for proceedings held before Judge Roger T. Benitez:Appeal Mandate Hearing held on 8/29/2022. Appeal Mandate ordered filed for USCA Case Number(s): 21-55608. Injunction dissolved. Both parties have 45 days to file simultaneous additional briefs and 15 days thereafter to file responsive briefs in light of Bruen. The Court will then decide whether to schedule any hearings or decide the case on the record.(Court Reporter Tricia Rosate). (Plaintiff Attorney John W. Dillon). (Defendant Attorney John Darrow Echeverria). (no document attached) (gxr) (Entered: 08/30/2022)

As the historical arguments were already argued in the original case, something extraordinary will have to be uncovered to have Judge Benitez change his mind in 60 days.

It is possible Judge Benitez will issue a temporary injunction against the enforcement of the ban.

If Judge Benitez issues the same judgment in favor of the plaintiffs as he did on June 4, 2021, expect the case to be immediately appealed to a three-judge panel of the Ninth Circuit.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Alan in NH

One of the best things Trump and the Republican Senate did in their short time was to confirm dozens of conservative judges into formerly left wing courts. Still paying dividends now and long into the future.

Ope

Alan, Trump will get many more confirmed during his upcoming term.

Russn8r

Sort of. Trump never bothered vetting. Just took the LoLibertarian FedSoc’s word for it. Consequently his 3 SupCt noms stabbed him & all of us in the back, joined the commie wing & Roberts, repeatedly blessed The Big Steal, created a states’ right to steal elections. No one has “standing” to contest a state stealing federal elections from other states. We’re stuck with that, and them, for life.

Considerthis

Most of the time I agree with the evaluations that you post. It does appear there is a group of people that automatically down vote your posts regardless of what you have posted. It just seems you have pissed a few people off. But what do I know, as you told the world –
I have no attention span and a low I.Q.
The old cajun said a diplomat is a person that can tell you to go to hell and you look forward to the trip.

Russn8r

Follow closely & you’ll see the real reasons they’re “pissed off”. “They” are mostly 10-20 sock puppets run by an ex(?)-LEO who opposes police accountability & claims that the cop who machine gunned Daniel Shaver did nothing wrong. You’ll see that whatever I write, however diplomatic & nothing to do with them, they DV like butthurt crybabies. Also >= 2 NRA trolls. They don’t like action items to DO something to save the USA: Volunteer-donate-sacrifice instead of just bloviate & tiger talk. I don’t live for upvotes; won’t self-censor to make chatroom commandos, sock pup, trolls toadies, authority worshipers &… Read more »

Last edited 23 days ago by Russn8r
Oldman

If you are ok with it, why to you complain about it so much?

Russn8r

Your little chickenS gang of locals is pathetic. I’m not complaining, I’m pointing out what you’re doing. You may believe in “spread the other cheek”, but I’m not into that sort of thing. You low-IQ toadies troll me around like ChickenSs, back-up your sock pup buddy Ope-TEX-Will-FordWill-Bruce etc and your prissy imaginary military hero pal, attack me, I reserve the right to respond in kind, say what it is, and then some. So stop whining, Cowpoke.

I’m taking off for 2 weeks fishing tomorrow, you ladies will have your little tiger talk playpen all to yourselves.

Last edited 22 days ago by Russn8r
Wild Bill

Oh really. Where could you afford to go fishing?

Last edited 22 days ago by Wild Bill
Ope

Bill, file that fishing bullshit away in the same folder as his Mexican degree in Spanish. Remember that? I think limp brain has to complete his sentence in the lockup! Some courts in certain jurisdictions allow offenders to split it up that way.

Wild Bill

I remember. He is always careful to give no details so that he can not be caught.

Or maybe he is planning a binge.

Ope

Bill, such a pitiful liar as limp brain is, it’s probably best he doe keeps his mouth shut. That’s been the downfall of many liars, they can’t remember their own lies.

Wild Bill

I remember when he claimed to have met Sanford Levinson. What a hoot!

Russn8r

FOAD, sock chimp.

Wild Bill

If you were really going fishing, you’d be packing, now, perverted perjurer.

Wild Bill

You are a poor guesser, and inadequate human being.

Oldman

And don’t bother coming back!

Wild Bill

I’m thinking that he will never give you the apology that you should get from him. I could be wrong.

Oldman

You’re right Bill. He never will. He accuses others of being trolls and ‘sock puppets’, all the while he impersonates the troll under the bridge, who gets pissed off because when he looks up, all he sees is piss raining down from the bridge. Even a STUPID Rat learns. Apparently he can’t take a hint, because no one appears to want him on this site and it is only the sock puppets that are not giving him the respect he so much deserves for being so politically astute and having a superior intellect. I really don’t think he has ever… Read more »

Russn8r

Translation: Ga-ah-olllllllee, Sarge! YOU’RE SO RIGHT! You SHORE are! HE DOES THIS & THAT & EVERYTHING ELSE & his IQ’s higher than ours & it’s frustrating & I’m on my period! Boo hoo! Let’s chase him away like vindictive little Bs & accuse him of chasing people away!”

Could you suck up any harder, TEX? Get a life, Tiger Boy.

Last edited 22 days ago by Russn8r
Wild Bill

That honorable man has sacrificed for his country. You, of no accomplishments, are no one to insult or even question him.

Russn8r

Prove it. And prove I haven’t. You’re just a LEGEND. Stolen Valor far as I’m concerned.

Wild Bill

The proof is that we are willing to share details about our service. I even gave you the colleges that I attended on condition that you would do the same. You lied.

You have no details to offer. That is proof of your lack of accomplishment. You are a nothing, but if you admit that then you are second rate human. Your filthy vile spew makes you even less

Only one who has served would know details as mundane as 1975 my private’s pay was $361 per month, paid in cash, each month or equipment details or SOP details.

Russn8r

No YOU lied, you prissy hypocrite. When I’ve given details, you & your pet sock-chimp Officer Ope-TEX claim they’re lies, though they’re as detailed as details you’ve provided. Why would I make up going to school in Mexico and knowing Spanish? (Which is what got your panties twisted this time: A friendly Spanish correction, and you flip out like a B.) Fact that you memorized someone else’s details for your legend proves nothing. But you know what, Generalíssima? If YOU’RE dumb enough to post YOUR full ID, photo, transcripts & other records online? Go for it. I won’t. Crickets Chirping!… Read more »

Wild Bill

Amounts of pay, equipment nomenclature, C,EOI details are not the kind of mundane details that can be memorized from someone else’s account.
I did not post any of those things on line, story teller.
What city in Mexico? Which University, prevaricator?
Even support 71L s are giving up the days of their lives for their country. Your type, on the other hand, only serve yourself.
We do not make policy, we win our nation’s wars, Know Nothing.

Russn8r

You’re repeating yourself. Evading issues as always. What do you ever do for THIS country? Not overseas. HERE where we’re losing it. Nothing is what you do. Just bloviate. And get huffy about your alleged “sacrifice”, for what? For some other country. Some S-hole. What does that do to save OUR country & Constitution from domestic enemies? Less than nothing. Listen to yourself. Who would bother making up a story about going to school in Mexico, out of the blue, as if it’s a big accomplishment? I certainly don’t think it’s a big deal. And who would claim that’s a… Read more »

Last edited 22 days ago by Russn8r
Wild Bill

Nothing but insults. Like those insane people roaming the streets of LA, arguing with themselves.
Because detail would add some credibility to your accounts.
The bragging only occurs in your own mind.

musicman44mag

I was getting a check for 365 in 1976. Privates pay.

musicman44mag

I don’t remember 19 or 20 cents a gallon. What I do remember is in 1972 I could get a sub sandwich, fill my dirt bike up and drive it four or five hours and then take it to the car wash and wash it for 2 bucks. I think my first job paid 3.25 an hour minimum wage. I made more as a kid mowing lawns for 5 or 10 bucks each.

Wild Bill

Still would be except for Nixon took us off the gold standard.

Wild Bill

Must have been inflation!!

Wild Bill

He is just a name caller. His debate technique has not improved since he was in the third grade.

3%er

Oldman, something is critically wrong with that russn clown. He’s so far gone he might be past any mental help.

Wild Bill

If he is really going fishing, then maybe, he could fall in the water, open up his pervert mouth to curse, and … drowned.

Ope

Bill, that would be a hilarious thing to see.

Wild Bill

Talk about polluting a water way!!

Considerthis

That you see that an apology is in order indicates that you are a man of honor. That you say you could be wrong shows that you are a mature responsible man. A person that can not admit they have made a mistake is really a small person. Most boys learn well before they become men that there are always going to be others that are stronger or smarter or both. A person that goes through life believing he is smarter than everyone has taken on a terrible burden, and can not have a healthy happy relationship with others. He… Read more »

Russn8r

You’re being a hypocrite. The abuse I’ve taken from those 3-4 A-holes, and now you, is extreme, but you blame me for responding. You too can FOAD.

Last edited 22 days ago by Russn8r
Wild Bill

Why don’t you do the right thing and apologies to the man? In fact you have many here to apologize to.

Tackleberry

As we’ve seen, an apology from him means nothing as he’ll only begin again. Why you guys even bother responding to him is beyond me as it only gives his mentally illness(es) air. If I wanted to be harassed by clowns I’d go to a carnival.

Ope

Oldvet, he’s talking about that mentally diseased scumbag called rooski. That boy is gone!!!

Ope

It doesn’t? OK.

Wild Bill

Forgot him already, hey!!

Wild Bill

He vomits out pervert minded insults some of which simply must be addressed.

Ope

Tackleberry, that’s exactly where Roosky should be too, the major freak show attraction at a damn carnival.

Wild Bill

You are very kind. Thank you.

Yes, I read once that Albert Einstein could explain his theory to the school janitor.

musicman44mag

I remember not more than a month ago a truce was called and everyone but one agreed. What ever happened to that?

Ope

Music, that ridiculous truce had zero chance of holding because of roosky alone. He continued to insult, argue, and be the same total jerk that he’s always been, and still is. Then the moron had the audacity to say that downvoting him, and disagreeing with his bullshit, violated the terms!

Wild Bill

He just does not have the self discipline for peace.

Oldman

Just the last twelve posts have proved beyond a shadow of a doubt that Ruuski is not of this world. He exists to try to extract respect from those he disrespects and can’t understand why the piss keeps raining down on him. I pray that he will finally take the BIG HINT that has been exhibited by current and former members here and just take on that fishing trip in his momma’s basement toilet, where he has been put in the corner like the kid in school who just could not get along.

Wild Bill

And thank you to all the individuals that refuse his perverse filth and stand up to him.

Ope

Bill, you notice the lying POS got back from its 2 week fishing trip in 6 hours?

Wild Bill

They threw him off the boat … for the good of the group. He was polluting a water way.

Last edited 21 days ago by Wild Bill
Ope

Bill, if it would had only sunk you could call it slimy river bottom.

Russn8r

Today is not over, OFFICER SOCK CHIMP.

Wild Bill

You go on a fishing trip, but spend your time here. What is wrong with you?

Russn8r

Haven’t left yet. Just can’t get enough of my jock, can you General? For an alleged hero, you sure are a prissy butthurt crybaby. Get a life, poseur.

Wild Bill

Yesterday you wrote that you were going fishing tomorrow. That would be today. Changing your story. I should have known.

Ope

Bill, the loser is just doing what he does best,..lying. I think we both knew he was never going fishing. Let’s see what kind of BS it comes up with tomorrow.

Wild Bill

Yeah, who’d go fishing with him?

Ope

Bill, Frack really likes to use the same type BS Frick does. Frick use to say he was an activist, interviewed various politicians, and went fishing a lot. Walla, Frack now has done, and is doing, all the above also. You can’t make this stuff up!

Russn8r

Actually, Frack, you’re Frack. Bill’s sidecuck.

Russn8r

Today is still not yet over, Genius.

Oldman

You haven’t figured it out yet, have you, dipstick? Without us, you have nothing. Sorry to tell you son, You are Done. Next time you think you have something relevant to say, take it elsewhere. They will have you figured out in no time flat and we will reap the rewards of you being absent…hopefully, FOREVER..

Wild Bill

Maybe he has been banned everywhere else. I don’t know if it is true, but I heard a rumor that during. his last vacation, his family moved away.

Ope

Alan, President Trump isn’t through doing more great things for the country. We can all look forward to his second term coming up after the ‘24 election!

musicman44mag

Dam right!!!!! 100 thumbs up.

Bubba

Second Term.
He’s having a better 2nd term right now. The decisions coming from SCOTUS and local elections are the best 2nd term a president could ask for. 😉
And the left calls someone else president. FJB

Montana454Casull

No such thing as an assault rifle , it’s a made up term by liberals to strike fear in the minds of all who are clueless about guns . Liberals love to fear monger , its the only way they can promote thier lies . These clowns in a pissing match on this site need to stick to the topic at hand and quit attacking each other like little teenage school bitches . We are fighting for gun rights in this country and you people are not helping the cause by attacking each other personally. Everybody is entitled to voice… Read more »

Rowboat

You are absolutely correct, Montana.
I just got through reading the rest of this site’s comments and marvel at the pettiness exhibited by these same old arm chair warriors cracking on each other.
They should be at least as eloquent in our common cause as they are in ball busting each other !

Ledesma

The leftist preoccupation with assault weapons is clear. But does anybody think that a world of single shot systems would shut them up either?

nrringlee

This circular appeals squirrel cage must cease. Bruen and Heller are clear as is McDonald. Any firearm can be construed as a ‘weapon of war.’ This phantom category of firearms needs to be debunked once and for all.

So, for my California friends, riddle me this: why do you trust a government that does not trust you?

musicman44mag

Kommieforniausual. The one word that explains it’s tactics.

hippybiker

To the good(sic)people of California. Here is a classic example of the misuse of your Tax Dollars! You all need to “Dummy Up!”