maestro pistolero
New member
How quickly could the court act to issue an injunction against enforcement of a law that is substantially identical to a struck law?
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WIN!! Bateman v. Perdue: N.C. Emergency Powers Ban
- Thread starter gc70
- Start date
Spats McGee
Administrator
mp, no court can issue an injunction to prohibit enforcement of the new laws until someone has actually challenged the new law. It doesn't matter that the new laws are "substantially identical" to the old ones. Unless and until someone challenges the new law, regardless of how closely it tracks the old one, there's no "case or controversy" for the courts to hear.
maestro pistolero
New member
Thanks. So if a suit is filed, THEN how quickly could this NC court act?
It is stunning to me that the legislature has zero respect for our system of government. The court absolutely has the right and duty to interpret the constitution as it has faithfully done here, but this body would instead substitute it's will for the proper judgment of the court. There seems to be no honor among these lawmakers. Just shameful.
It is stunning to me that the legislature has zero respect for our system of government. The court absolutely has the right and duty to interpret the constitution as it has faithfully done here, but this body would instead substitute it's will for the proper judgment of the court. There seems to be no honor among these lawmakers. Just shameful.
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Spats McGee
Administrator
At best, probably 60 days. Once the Complaint is filed, it has to be served on the defendants. Then the Defendants will have 30 days under the Federal Rules of Civil Procedure to Answer the Complaint. Then there has to be a hearing on the motion for an injunction. If all goes smoothly and quickly, the trial court might issue an injunction in 60 days. A more likely scenariois 90-120 days.maestro pistolero said:Thanks. So if a suit is filed, THEN how quickly could this NC court act? . . . .
maestro pistolero
New member
Thanks, Spats. A follow up 'Q', if you will. Aside from electoral consequences, if any, is there a point at which a recalcitrant legislature hostile to the rule of law faces consequences for repeatedly passing legislation KNOWN to be unconstitutional?
Spats McGee
Administrator
Not one of which I'm aware. The ballot box is really the only consequence. Legislators enjoy legislative immunity, to protect them from facing lawsuits every time they proposed or passed unpopular legislation.
Spats McGee
Administrator
I fear that such an amendment would have the effect of totally seizing up our legislatures. Legislators would either be too afraid of lawsuits to pass any laws, or they'd be so busy fending off lawsuits that they wouldn't have time to pass any.
Cant really see how that would be bad... Im certainly not for being lawless but at the same time we cannot continue on the tidal wave of law passing as has been going on for quite some time.. Of course I also believe that the legislature should not be able to exempt themselves from the laws they pass.
Spats McGee
Administrator
If lawmakers can't pass any laws, they can't repeal any laws, either . . . No way to change things, for worse or for better.BGutzman said:Cant really see how that would be bad...
Aguila Blanca
Staff
Given the current state of government affairs, I would be happy with a Constitutional amendment requiring that for the next ten years the Congress and the legislatures of the several states must repeal two laws for each new law they enact.
We also NEED a Constitutional amendment prohibiting unrelated amendments being tacked onto bills, either as "poison pill" provisions or "I'll get mine" provisions. Anything that potentially deserves to become law deserves to be debated on its own merits, not on the basis of whether or not its not bad enough to prevent legislators from voting for the bill to which it's attached.
We also NEED a Constitutional amendment prohibiting unrelated amendments being tacked onto bills, either as "poison pill" provisions or "I'll get mine" provisions. Anything that potentially deserves to become law deserves to be debated on its own merits, not on the basis of whether or not its not bad enough to prevent legislators from voting for the bill to which it's attached.
Im not sure what the ultimate answer is but concerning firearms it seems it will forever be easier to pass more laws banning whatever then we will ever be able to keep up with in appealing.
I do think there is a strong possibility in the next decade that the SCOTUS will spell out that guns and gun ownership is a civil right and that it is necessary that you can choose to possess arms for your defense most anywhere that isnt a specially limited area...
I do think there is a strong possibility in the next decade that the SCOTUS will spell out that guns and gun ownership is a civil right and that it is necessary that you can choose to possess arms for your defense most anywhere that isnt a specially limited area...
That, of course, would depend on the composition of the court. Several Justices are getting to the point that health or other issues might dictate replacement in the next few years.BGutzman said:I do think there is a strong possibility in the next decade that the SCOTUS will spell out that guns and gun ownership is a civil right and that it is necessary that you can choose to possess arms for your defense most anywhere that isnt a specially limited area...
Although it appears to be a moot point at this time, I'm going to chime in on the nature of qualified immunity. It is not necessary for a court to have declared the precise statute unconstitutional before one enforcing the statute may lose qualified immunity. The issue is whether "in the light of pre-existing law the unlawfulness must be apparent." To use an extreme example, police officers would not be entitled to qualified immunity simply because a new state law authorized them to shoot members of a racial minority on sight.
Here's a quote from a case on qualified immunity regarding a search, not a statute:
I have not analyzed the bill that was introduced (and now apparently dropped) to see if is close enough to the former statute to strip an enforcing officer from qualified immunity.
Here's a quote from a case on qualified immunity regarding a search, not a statute:
Wilson v. Layne, 526 U. S. 603, 615 (1999) (emphasis added, publicly available copy at http://www.law.cornell.edu/supremecourt/text/98-83/#writing-ZS).What this means in practice is that “whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U. S. 635, 639 (1987) (citing Harlow, supra, at 819); see also Graham v. Connor , 490 U. S., at 397.
In Anderson , we explained that what “clearly established” means in this context depends largely “upon the level of generality at which the relevant ‘legal rule’ is to be established.” 483 U. S., at 639. “Clearly established” for purposes of qualified immunity means that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id., at 640 (internal citations omitted); see also United States v. Lanier , 520 U. S. 259, 270 (1997) .
I have not analyzed the bill that was introduced (and now apparently dropped) to see if is close enough to the former statute to strip an enforcing officer from qualified immunity.
When I last reported this case, ther wasn't much to talk about, except the last motion - Alan Gura's Fees. Even though it was reported in Nov., I failed to get the docket recapped and missed the following (starting with the motion for costs):
So what took so long? First and foremost, the parties were meeting to work out a setlement. Hence all the delays in filing a response to the motion for costs. Secondly, I simply missed the most important thing... Doc #97. A consent motion to pay the fees of $53,697.50 for fees and $350.00 for costs.
While the motion for fees has not been ruled upon, I doubt the Court will deny the consent motion. Why the final order has not been made official, I'll let wiser heads opine.
06/11/2012 90 MOTION for Attorney Fees and Costs by Michael Bateman, GRNC/FFE, Inc., Virgil Green, Forrest Minges, Jr, Second Amendment Foundation, Inc. (Camden, Wes) (Entered: 06/11/2012)
06/11/2012 91 Memorandum in Support regarding 90 MOTION for Attorney Fees and Costs by Michael Bateman, GRNC/FFE, Inc., Virgil Green, Forrest Minges, Jr, Second Amendment Foundation, Inc. (Attachments: # 1 Exhibit National Law Journal Sample Billing Rates) (Camden, Wes) (Entered: 06/11/2012)
06/11/2012 92 Declaration regarding 90 MOTION for Attorney Fees and Costs by Alan Gura by GRNC/FFE, Inc., Forrest Minges, Jr, Virgil Green, Michael Bateman, Second Amendment Foundation, Inc. filed by GRNC/FFE, Inc., Forrest Minges, Jr, Virgil Green, Michael Bateman, Second Amendment Foundation, Inc. (Attachments: # 1 Exhibit Invoice) (Camden, Wes) (Entered: 06/11/2012)
06/11/2012 93 Declaration regarding 90 MOTION for Attorney Fees and Costs by Kearns Davis by GRNC/FFE, Inc., Forrest Minges, Jr, Virgil Green, Michael Bateman, Second Amendment Foundation, Inc. filed by GRNC/FFE, Inc., Forrest Minges, Jr, Virgil Green, Michael Bateman, Second Amendment Foundation, Inc.. (Attachments: # 1 Exhibit Invoice, # 2 Exhibit Filing Fee) (Camden, Wes) (Entered: 06/11/2012)
06/11/2012 94 Proposed Order regarding 90 MOTION for Attorney Fees and Costs by Michael Bateman, GRNC/FFE, Inc., Virgil Green, Forrest Minges, Jr, Second Amendment Foundation, Inc. (Camden, Wes) (Entered: 06/11/2012)
06/25/2012 95 MOTION for Extension of Time to File Response as to 90 MOTION for Attorney Fees and Costs by Beverly Perdue, Reuben F. Young. (Attachments: # 1 Text of Proposed Order) (Peters, Alexander) (Entered: 06/25/2012)
06/26/2012 MOTION REFERRED to Julie A. Richards, Clerk of Court: 95 MOTION for Extension of Time to File Response as to 90 MOTION for Attorney Fees and Costs. (Lee, L.) (Entered: 06/26/2012)
06/26/2012 TEXT ORDER granting 95 Defendants Beverly Perdue's and Reuben F. Young's Motion for Extension of Time. Defendants' response to 90 motion for attorney fees and costs is due July 25, 2012. Signed by Julie A. Richards, Clerk of Court, on 6/26/2012. (Richards, J.) (Entered: 06/26/2012)
07/24/2012 96 Second MOTION for Extension of Time to File Response as to 90 MOTION for Attorney Fees and Costs by Beverly Perdue, Reuben F. Young. (Attachments: # 1 Text of Proposed Order) (Peters, Alexander) (Entered: 07/24/2012)
07/25/2012 Motion referred to Julie A. Richards, Clerk of Court: 96 Second MOTION for Extension of Time to File Response as to 90 MOTION for Attorney Fees and Costs. (Lee, L.) (Entered: 07/25/2012)
07/25/2012 TEXT ORDER granting 96 Defendants Beverly Perdue's and Reuben F. Young's Motion for Extension of Time. Defendants' response to 90 motion for attorney fees and costs is extended until August 2, 2012. Signed by Jolie Skinner for Julie A. Richards, Clerk of Court on 07/25/2012. (Skinner, J.) (Entered: 07/25/2012)
08/03/2012 97 RESPONSE to Motion regarding 90 MOTION for Attorney Fees and Costs Consent Order filed by Beverly Perdue, Reuben F. Young. (Peters, Alexander) (Entered: 08/03/2012)
08/22/2012 Motion Submitted to Senior Judge Malcolm J. Howard: 90 MOTION for Attorney Fees and Costs. (Rudd, D.) (Entered: 08/22/2012)
So what took so long? First and foremost, the parties were meeting to work out a setlement. Hence all the delays in filing a response to the motion for costs. Secondly, I simply missed the most important thing... Doc #97. A consent motion to pay the fees of $53,697.50 for fees and $350.00 for costs.
While the motion for fees has not been ruled upon, I doubt the Court will deny the consent motion. Why the final order has not been made official, I'll let wiser heads opine.