“Prophet Without Honor”: Sean Brady on Judge VanDyke’s Controversial 2nd Amendment Prediction

Timothy Kowal, Esq.
March 15, 2022

“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining appellate attorneys Tim Kowal and Jeff Lewis, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.

(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)

McDougall involved Covid-19 orders shutting down gun ranges. The McDougall decision found Governor Newsom’s executive orders violated the Second Amendment.

Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.

But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But the three attorneys agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.


Sean Brady  0:02 
Well, you might have objections with Judge VanDyke tone. I think that if you read his concurrence alongside the Ninth Circuit opinions that he is referring to, and and taking the task, I think he's vindicated. Welcome to

Anouncer  0:17
the California pellet podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:31
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:33
And I'm Tim colwall California Department of podcasting license pending references check. The California appellate law podcast is a podcast for trial attorneys and other appellate attorneys. Jeff and I both split our time between trial and appellate courts. And in this podcast, we try to bring our audience guests and news that might help other attorneys in their practice and inform them on interesting developments in the law and the legal profession.

Jeff Lewis  0:59
Welcome to Episode 26 of the podcast.

Tim Kowal  1:01
And today we welcome Sean Brady to the show. Sean is a constitutional litigator most prominently taking on Second Amendment cases. Sean's practice also includes municipal law, legislative advisement, constitutional law, civil rights litigation, firearm regulatory compliance, Construction Law and Business Litigation, Sean's handled trial court matters and all of these areas and appellate matters and most of them, including arguing in front of the state and federal courts of appeal. As an attorney, Sean has also served as co chair for the Coalition of civil liberties and as a guest lecture on constitutional law at Westwood college. So Sean, welcome to the podcast. Thanks for joining us.

Sean Brady  1:40 
Thanks for having me, John.

Tim Kowal  1:42
We've been talking for a while now about bringing you on to the show to talk about some of these emerging Second Amendment cases. And finally, with we'll get to this recent decision by Judge Van Dyck on the Ninth Circuit, that they got a lot of eyeballs because of the way it was written, we'll get to that unusual opinion or duo of opinions in a moment. But just to kind of get the audience acclimated to you a little bit. I want to just kind of go into your background. Tell us a little bit about your law practice.

Sean Brady  2:12 
Sure. So I am a partner at the law firm and Michelle and Associates in Long Beach. Our firm is does all sorts of civil litigation, little bit of criminal defense work, but most of it or I guess we're most well renowned as doing matters that are relating to firearms. So specifically civil rights cases where we represent plaintiffs to challenge laws or policies by the government. We do defense of companies that are in the firearm industry, for example, the government might bring 7200 actions against these companies or plaintiffs might seek damages from them for personal injury reasons. Even though there's the PLC A, there are ways around that in certain instances that we defend against. We also provide regulatory advice to fire those in the firearm industry so that they can avoid being in those types of litigations ahead of time. And so, we also represent interest groups for you know, nonprofits like the NRA and CRP we have in the past, providing memoranda for their, their members that they can put out and keep them out of trouble as well and keep them abreast

Tim Kowal  3:32 
of the law. And the CRP A is the California Rifle and Pistol Association. That is correct. And where is your office located?

Sean Brady  3:41
Long Beach?

Jeff Lewis  3:43
Where neighbor's house Verdi's? Oh, very good.

Tim Kowal  3:47
Now Long Beach? Well, in full disclosure, I was a law clerk at Sean's a law firm. During college, Sean and I went to law school together at Chapman law school. And so Sean John carried on there. I went on to do more business litigation and then appeals, how much of your work is, you know, I've read in your bio, that you do business litigation, some commercial litigation, what's the breakdown between your civil rights litigation and, you know, kind of garden variety commercial litigation?

Sean Brady  4:15 
These days? I would say me personally is about 5050. I'd say the firm is still probably, I don't want to speak for others, because there are individuals who do a lot of employment law and things that have nothing to do with firearms, but I would still say it's a majority of firearm related issues. On the plaintiff side. So yeah, it's me personally, though. 5050. And a lot of the 50 of that defense work, it does involve firearms as well. So I'd say the majority of what I'm doing is firearm related.

Tim Kowal  4:48 
I'm always curious about about attorneys who do civil rights litigation. Do you have to do the commercial litigation to fund the the Civil Rights practice?

Sean Brady  4:59 
There is an hour so that, you know, we don't get paid a whole lot on the civil rights litigation side until a potential win, which can be yours and maybe not happen at all, as you all are aware, you know, a lot of these civil rights cases are designed to go all the way they're designed to make law. So you know, we're not trying to settle to get a big check, we're going the distance. And so those types of cases can be expensive. And the the nonprofits that are generally funding, those are the private individuals, you know, aren't looking to pay top top hourly rates for cases of that nature. So yes, there is an element of that, but also just, you know, I come from a family of contractors. So you know, you get, you can't say no to family, so you get sort of sucked into that. And then you build a practice around, that sort of stuff. And you learn different things, because clients who are in the gun world also will need different things that that we need to be able to, you know, service them for. And so you just pick things up as you go.

Tim Kowal  6:08 
As an aside, I mentioned that I that I worked at your firm, Michelle and Associates, this was back in 2006 or so to that in 2007. And I remember at that time, in Long Beach, there's a ton of great restaurants down there. But I know Long Beach was very locked down and, you know, during during COVID. And I wonder is that is that persist? Or is Are things getting closer to back to normal?

Sean Brady  6:30
It persists somewhere, it's not really locked down. And they've sort of allowed everybody around here to do outdoor stuff that that, you know, kind of opens it up a little bit. But yeah, it's it was hit fairly, fairly hard by that.

Tim Kowal  6:45
Yeah. I mean, what courts are most of your cases filed, they in state court, or mostly federal court?

Sean Brady  6:51
Sure. On the plaintiff side, it's almost always federal, we occasionally are filing state court cases, state preemption challenges in state cases. But beyond that, the only time I'm really in state court is when I'm defending a case that was fraught by playing if you chose state court.

Tim Kowal  7:11 

And are you always starting in the Ninth Circuit? Or does your work take you in other circuits? No, it's

Sean Brady  7:17
primarily the ninth, you know, unless we're doing an amicus brief, occasionally, we'll have an issue that's being raised in an appeal in another circuit will impact NATO potentially impact nationwide, like the right to carry or the challenges to so called assault weapons or large capacity magazines. And so it will make sense for one of our clients to file have us found an amicus brief in those matters as well. Yeah. Beyond that, we strictly stick to the ninth circuit.

Tim Kowal  7:49 
You shared with me one of your recent amicus briefs. I wanted to talk with you about that a little bit later on. All right. And then the last question before we kind of get into the meat, like you Tell us quickly about the your favorite case that you've ever worked on?

Sean Brady  8:03
That's a tough one, because I've had a lot of interesting cases, as I'm sure you can imagine that being in the world in which I work. But I would have to say that a case called Parker v. California, which was actually in state court, and not a Second Amendment case, it was a fakeness challenge was probably my favorite case, just because it was one of those things that just ran the gamut of procedural issues, legal issues, novel issues, experts, characters, who were the experts. You know, my expert witness the issue was ammunition that the state passed a law that you had to register and have all these restrictions on so called handgun ammunition, but they define handgun ammunition as ammunition principally for use in a handgun. Anybody who has any idea about firearms understands that cartridges are interchangeable. There's no such thing as you know, you would say is nine millimeter principally for use and a handgun or long gun, everybody go it's a handgun. And then I would show you all these rifles that shoot any backhoe and machine guns for that matter. And then you would say, well, what's the test for principle that, you know, the military is burning millions of rounds of nine millimeter through machine guns, whereas civilians, you know, might have a ton of nine millimeter handguns, but which, which is principle. So it was a vagueness issue. And we had to get experts involved in our expert was a former California Department of Justice Bureau Chief narcotics undercover officer who had been in to gunfights still had bullets in him. It was just kind of having fun with the whole thing explaining to the government that your law doesn't make sense. You don't know what you're talking about. And we won at the trial court level we want at the appellate level. And I think we went a little too well, at the appellate level. The appellate decision kind of went a little bit further than it kind of had to, and I think that's what triggered the California Supreme Court's attention, who accepted it, and we were were briefed and ready to go in the California Supreme Court. But they took so long that the legislature passed the law mooting the entire case said, Okay, we're done with this handgun ammunition nonsense. We're just gonna apply it to all ammunition which is where we currently are as well as the legislature and propositions. Gavin Newsom is proposition 63, which is now the subject of all of our current litigation, more or less.

Tim Kowal  10:22
Oh, that's, that's a wild ride. So you actually got the attention of the ledges legislature. So rather than getting the Supreme Court outcome, you got got a legislative outcome

Sean Brady  10:33
twice, actually before but they tried to move it by doing some ticky tack maneuvering early on, and we provided our clients that, you know, the lobbyists to go and explain why that wouldn't work. And it I forget forgot veto. I think Governor Brown actually vetoed it. So it was it was quite a wild ride many, many different aspects.

Tim Kowal  10:57
Alright, well, that's a good good entree into into talking about some of these Second Amendment cases recently out of the Ninth Circuit, I wanted to give a short disclaimer, since we are going to be talking about gun rights and gun control laws and with some people that can cause some heart palpitations because it's can be a very controversial subject. So even though we're going to be discussing these subjects from a couple of levels removed, the issues are still controversial. When I'm when discussing a controversial subject, my preferred practice is to reveal my my biases, which are here in favor of broader protection of the Second Amendment. And in the end with that the the audience can adjust their frequencies accordingly. We have some I don't

Jeff Lewis  11:37
have a practice of disclosing bias, but I'll just go out there and say I tend to weigh in on the side of common sense gun reform and restricting automatic weapons. But that's just been I'm looking forward to this conversation.

Tim Kowal  11:51
Well, good. So we have some we have some balance.

Sean Brady  11:53
And despite despite my last name being Brady, I agree with Tim, on this issue. So

Tim Kowal  12:01
there you go. So we do have some interesting Second Amendment news of interest to appellate attorneys in the McDougal versus county of Ventura decision out of the Ninth Circuit. McDougal was surprising because in that case, the Ninth Circuit enforced the Second Amendment. So that's good news to Second Amendment supporters of the outcome. But it was so surprising though that it even surprised judge Van Dyke who authored the majority opinion. And he was so surprised, in fact that Judge Van Dyck authored his own concurring opinion in which he wrote the dissent, or at least got the dissent started for the on but on bonk review, he is he is certain is coming. Shawn, I wonder if you would tell our audience a little bit about McDougal.

Sean Brady  12:41
Sure. But firstly, to start off, I don't know how surprising it is with the current makeup of the court. We've actually lately had quite a lot of favorable Second Amendment opinions out of panels of the Ninth Circuit. And so with this new makeup, it's not unexpected or surprising at all to get these favorable opinions. It wasn't in the recent past. I believe with Trump appointees that sort of that dynamics changed. Obviously, we've had a favorable opinion in the young V. Hawaii case, which was a right to carry case. In a case our office handled the dunk can be viscera, which was about large capacity magazines. I personally argued in front of a panel over California's restriction on so called assault weapons called rep V viscera, which is now stayed pending a Supreme Court case coming down which the two Trump appointees and so the that panel should seems to be favorable wanting to issue a favorable opinion as well. You know, so it's not that surprising what I think, ironically, with Judge Van Dyck, it says that it would be surprising if the full ninth circuit on Bach doesn't take that that went away. That's what would be surprising. And, you know, I think he's right. Before we get into that, I'll just answer the, the question of what does McDougal involve? And McDougal was essentially, about back at the beginning of the pandemic, the California Health Board or health department, issued an order, basically saying that these are the companies that are these are the businesses that are essential and can remain open. And if you're not on that list, sorry, you can't, you can't operate and firearm stores were not on that list despite being protected by the Second Amendment, or at least arguably so. And so the the McDougal lawsuit was basically saying the government cannot declare an emergency and leave some stores open and then say that the one store that is the purveyor of a fundamental right is not essential and can be shut down indefinitely. I you know, it ended up being 48 days or so, but that was only after tremendous pushback, you know, With tons of litigation filed by all sorts of people, there was more than just this MacDougal lawsuit. That's the one that's ultimately continued and survived. There were some that just basically gave up because they consider their cases mooted after they open gun stores back up. And folks didn't want to continue to push the issue thinking, you know, this was a one off, it won't happen again, the plants in McDougal thought otherwise and decided to push the issue to the night and, and good for them and good. So, you know, good because it produced this opinion. That was unanimous, you know, it was to concurrences. One sort of, as I think we'll talk about, kind of a boat, you know, quasi concurrence. But you know, it was all three judges, essentially, the green and the outcome that you cannot shut down guns to the Second Amendment precludes government from shutting down entirely gun stores indefinitely. Hmm, I think you're muted.

Tim Kowal  15:55
Sorry about that. Yeah, I was having a coughing fit. So I muted myself. I think the the lead example, by contrast that Judge Bandai gave was that gun shops were closed while bike shops were open. So you know, what's the deal there? I think is what he was saying. And as you mentioned, he got you know, he got the whole panel to, to sign on to as majority. But then he wrote a concurrence in which he indicated that there was another way, a two step approach of that the that the Ninth Circuit and other circuits have been have adopted in the wake of Heller and MacDonald. Now, he takes some issue with but I think you wanted to say that, here's the here's the right approach that I put in my majority opinion. But even if the court wanted to take this more gun control, friendly approach, here's how you get to the same result. So I'm kind of given the on bonk panel a head start. So I wonder if you could just kind of quickly lay out what is the what is the correct approach, according to judge Van Dyck that he gives in his majority? And then what is the the other kind of prevailing or split approach that he writes about in the concurrence?

Sean Brady  17:02
Sure, the correct approach, and the majority is essentially saying, Look, if history and tradition and text doesn't support a restriction on on a second amendment right, then, then you're you're done. Right? You don't you don't go beyond that the government can't just make up new restrictions that haven't had been historically protected. And for the first time that I can recall, the the court actually then applied the Ninth Circuit's current test, which I think a lot of judges who are pro Second Amendment are agreeable with the Second Amendment being a robust, right, which we saw in the Supreme Court oral argument that they are not very fond of the current ninth circuit test, which is a two step test that says, you know, first you ask it is this thing that's been regulated within the scope of the right, and that's obviously a legitimate question, you know, you're not gonna play a second moment scrutiny to some that's not protected. So that's a legitimate question. But the way as Judge VanDyke explains, in his in his concurrence is that that can be avoided in a way that allows courts to sort of down downgrade the Second Amendment without really giving it its due in a in a sort of elementary way that's wrapped up in a way that looks like it is sophisticated, but it's really, as he demonstrates his concurrence can be, you know, it's just a varnish that can be, you know, rubbed away very easily in shows. The the, I'm trying to, I'm trying to be diplomatic in my approach, because I'm not as

Tim Kowal  18:45
why don't I, there was a quote from the beginning of Judge van dykes concurring opinion that I thought I'd read for our listeners, so they can kind of gauge the tone that he's taking. And so here's judge VanDyke, from his concurring opinion, quote, since our courts Second Amendment intermediate scrutiny standard can reach any diesel result one desires, I figure, there's no reason why I shouldn't write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way, I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case on Bach. And then he goes on performs the two step analysis, Shawn, that you just alluded to. And then at the end, Judge VanDyke says, For these reasons, we affirm the district court's dismissal of plaintiff's complaint for failure to state a claim. You're welcome. Basically saying to the rest of the court, you're welcome for doing your work for you. So that drew a little bit of criticism from from legal commentators that this was this was maybe maybe a little bit disrespectful or undeploy diplomatic way of doing it. I do. I did hear report that at least one of Judge van dykes colleagues was none too pleased at this But But how else?

Jeff Lewis  20:01
How else is the judge supposed to voice concern about the direction the court is going regarding to where you are on guns? Oh, well, I think this is a great way for a judge to voice concerns about trends, bigger picture issues that go beyond one case, that's just me. I've never seen a judge write his own concurring opinion before in a case in which the author's majority but I, you know, I, for one, if I got a vote, I would say it's a perfect way to let off some steam and educate his fellow justices and judges about what's happening on the bench.

Sean Brady  20:35
I agree with you, Jeff. And, you know, it is unorthodox and, you know, uses a semi, you know, derisive tone that, you know, decorum is a little a little lacking, but, you know, parody and mockery can be powerful tools of persuasion, and like you said, call attention to an issue that that others might be and I genuinely do believe that these judges who are signing on to the these opinions, that judgment I shows walks you through how they are lacking in in, in logic, frankly, and and support. And I think some of them are so tied up in the emotion of the gun issue that they do fail to see that he's making legitimate points, and and that the logic just doesn't flow. I mean, it he demonstrates it's actually quite masterful parody, and writing. And for those of us who have been doing this for years, this is the stuff we say behind the scenes, frankly, like, I mean, you're gonna say it's a right, that's like, for example, the carry issue, right, the courts can say, we're gonna assume that the Second Amendment protects the right to carry, but then we're gonna say, intermediate scrutiny applies, because it's not a ban on guns in the home. And that just because guns are dangerous, we can just sort of justify that right away. Like, I'm sorry, that's simply not the way constitutional rights work, you've now converted or right into a privilege, either you have a right to do something, and the government has to meet a high burden to take it away from you, or you don't have a right, in which case, you know, it's a privilege. And so it's really that kind of just under the surface this, a lot of these unfavorable Second Amendment opinions can be dispensed with. But as as Judge VanDyke, you know, demonstrates in a in a way that I frankly, enjoy, but But it's not my style. You know, I obviously broken amicus brief that I told you about or that Tim, you mentioned, in SCOTUS or a co author, I should say with my my colleagues.

Tim Kowal  22:44
Yeah, yeah. And I wanted to get that in in just a minute. I did think just, I want to offer my two cents on this point about about judge and dikes tack here. And I do agree with with both of you on that, that, or at least, you know, maybe maybe the volume could have been taken down a little bit, but I can I can empathize with with his frustration, all of us as practitioners have had that moment where you're reading the opinion against you. And you're thinking, okay, okay, but where was my where's the court's response to my key argument, my lead argument, where is it, and it's not there. And sometimes you get the feeling that the members of our profession, including judges can just kind of sweep things under the rug, give you a lot of word count on other issues that you didn't really care as much about, but not not on on the issue. But when I read that, that part of Judge Ben dykes concurrence, where he says, this way, I can demonstrate just how easy it is to reach any desired conclusion under our current framework. I thought of this I just read a Louis manakins book on on various American figures, including just Justice Oliver Wendell Holmes, and he pointed out that Judge justice Holmes used to like to talk to his colleagues on the Supreme Court when they're conferring about a case that he would admit any legal principle of law that they proposed. And then he would use that to decide the case under discussion in either in either either direction, because Holmes was a famous or an infamous exploiter of the malleability of words. And that, incidentally, is why he has both a monster of civil liberties and a hero of civil liberties and a monster of free speech and a hero of free speech. Because he could read the words or read into the words any meaning that he was appropriate for the outcome of that case. And, you know, that the tokens to me a problem with with an interpretation when it can lead to any outcome you like?

Sean Brady  24:39
Yeah, indeed, I think while you might have objections with Judge VanDyke tone, I think that if you read his concurrence alongside the Ninth Circuit opinions that he is referring to, and and taking to task, I think he's vindicated in his approach and his criticism and I think think that this will probably end up being his legacy. And and that will mean that 50% of people will love him in the future and, you know, reading back about him and 50% will view him less favorably. But I also think that that what he's pointing to hear is going to be Chief Judge Thomas's legacy, which is the unfair I think it's objectively unfair treatment of a fundamental right. And I think any fair minded person will see it as that if they if they look at the details, and realize that it was unjustifiable, what what how the Ninth Circuit has treated the Second Amendment under Chief Judge Thomas, that's going to be his legacy. And I think there'll be more than 50%, who will view that legacy as unfavorable. So judge Van Dyck will, I think, outdo Chief Judge Thomas in the history books on that score?

Tim Kowal  25:59
Well, he did make some headlines. I understand he was getting a lot of calls for interviews, of course, not surprisingly, he's not indulged them but but as we've been talking about Judge Van Dyck here is is rather upset about how the Ninth Circuit has been using his perception that it's been using the on bonk review process to negate any pro Second Amendment decisions, while at the same time denying review of any pro gun control decisions. And it just so happens, Shawn, that you submitted an amicus brief to SCOTUS laying out just that, just that issue. Can you tell us a little bit what that what was that amicus brief about? And does it bear out judge van dykes criticism of how the Ninth Circuit treats Second Amendment cases?

Sean Brady  26:41
sure that the case that that brief was submitted on is the case it's currently being was heard by SCOTUS a few months ago and opinions do here in spring any time. And it was a challenge to New York State's Ansari, New York City's notes in New York State, I'm sorry, the restrictions on concealed carry permits. And basically what that regime looks like is if you go into apply for a concealed First off, open carry, the ability to carry a gun, like like a cowboy on your hip openly is unlawful. So the only mechanism under New York law to be able to carry a firearm is to get a concealed weapon permit, but they have what's called a I forget that the terminology specifically because all these states that do this have, like, for example, California has a good cause standard, and they essentially have that same standard, you have to show good cause to a law enforcement entity. And I think in New York, it's actually a judge who decides whether you have sufficient need for carrying a gun. And like I was saying before, you know, if a government official has discretion to decide whether you are able to exercise your right that it's really not a right.

Tim Kowal  28:01
Yeah, if that's the only way that you can exercise the right and that's exactly it. Open carry is not a possibility. So getting the the good cause determination was the only game in town in order. Exactly. That is your Second Amendment. Right.

Sean Brady  28:13
So RKR firm currently has a case in the Ninth Circuit pending on charging California's law on essentially the same grounds. But it stayed pending the decision in SCOTUS. So our brief didn't really go into the merits of the specific law at issue in New York. As a matter of fact, we open up the brief saying, you know, petitioners have done a fantastic job convincing this court why they should win. We're here more to explain the problems that are going on with courts on all Second Amendment issues. And well, the Supreme Court is usually more inclined to limit their rulings so that there isn't a larger impact. In this instance, it may make sense to go beyond that, because you can potentially avoid a whole slew of new cases coming down if you sort of clarified to these lower courts that they are appropriately applying the law. So we walked them through all the circuits and how they they do exactly what Judge Van Dyke was criticizing in the night that we we focus on the ninth being from the ninth, mostly and laid out how literally every single case that has a favorable ruling from a panel in the Ninth Circuit has been has been taken on bonk and overturn with one small exception. Excuse me, that was our case over the so called California's restriction restriction on so called large capacity magazines, which we were up on a preliminary injunction. I was shocked at the state even appealed the petition

Sean Brady  30:00
or injunction? And then, you know, we were happy that we prevailed at the panel level, but then a judge lit actually call for aanbod review of a preliminary injunction upholding a preliminary injunction. And it wasn't until the state

Tim Kowal  30:16
so ever seen that before. That's that seems awfully it would be awfully rare.

Sean Brady  30:20
Yeah. is extremely rare, you know, on box are supposed to there it says in the in the rule for on BOC review that it's not favor, it's unfavorable. So but like, it seems to be favorable in the Second Amendment world, when there's an unfavorable urban, there's a favorable opinion, you know, that they, the judge call for an ongoing vote. And it wasn't until the state set weighed in and said, we don't even think that that the preliminary injunction, you know, warrants on Baugher view and then the court relented and let it go. If had the state not weighed in, I think that the Ninth Circuit would have held a preliminary injunction ruling on bonds. And it's not just the preliminary injunction. I mean, some of these cases that the the Ninth Circuit has taken on Bach have included, I believe, was the to share case where all the panel in the night said was pay the lower court dismissed this case, saying that it's not there's no second amendment issue involved, and they declined to apply any scrutiny. We think that there is a second amendment issue involved. And we want to remand just to hear, you know, the choose to have scrutiny apply and see what the lower court says they won't give it a win or making any final dispositive determinations and simply said, we want to remain this. And the ninth took that out of the hands of the District Court. And on bought it same, same with the Nordyke case. Yeah. Not dispositive rulings that

Tim Kowal  31:53
yeah, I was gonna point out Nordyke and just for our listeners, I thought I would just mention a couple of the other cases in your amicus brief that stood out to me that the Nordyke case where apparently the panel, this was right after the DC versus Heller case in 2008, followed by McDonald in 2010. So this is in 2011, the ninth circuit panel granted plaintiff leave to amend in light of the recent Supreme Court decision, but then on bonk, took it up and said no, no, no right to do a man just dismiss with prejudice. And then another case of Duncan versus Bursera, in 2018, where the panel apparently in, in affirming a gun control legislation relied on Heller's dissent rather than the majority opinion. And yet, there was no on bonk review. And then we talked about kind of the getting them coming and going problem, you don't have a right to open carry. But when you get when you challenge a discretionary determination on concealed carry, the the Ninth Circuit said no, the Second Amendment doesn't protect the right to concealed carry, but then was silent about the prohibition on open carry, which effectively wrote the Second Amendment out of the Constitution as it concern those plaintiffs. So those are those are some ones that stood out to me that that I thought bore out your, your argument, and then judge van dykes argument that. Yeah, there does seem to be two different standards here, when it comes to gun control measures seem to get I get the light touch and pro Second Amendment decisions and get the full on bonk review.

Sean Brady  33:27
Yeah, not a single if the excuse was, hey, we're in a, a new world with the Second Amendment stuff. And you know, the Supreme Court just made a ruling in 2008. And we kind of have to get this right. We're in the early stages, kind of like when the First Amendment first started getting heard by courts and evolving, or the jurisprudence was evolving, you know, if that were the case, okay. But you have to at least be able to point to one case where there was an unfavorable opinion, to, to, you know, sort of give credence to that or to, you know, to suggest that that is actually what they're doing. But, you know, when it's, when it's five or six, I forget what the score is, but five or six favorable opinions get on bonds and CRO on the unfavorable. I think that there's some suspect there. And that's why we wrote the brief. And that's why I think, Judge Van Dyck will be vindicated, you know, perhaps not his tone, but his his reasoning will be

Tim Kowal  34:30
for sure. Now, coming back to McDougal, I haven't checked, what's the status on that has has the Ninth Circuit ordered on bonk review,

Sean Brady  34:39
the man ordered it but a judge called for a vote. So the process is if the parties don't ask for all BOC review, which in this case, the parties did not the county of Ventura does not care. I don't think at this point, whether about this case, they they're of the mindset of like we just had this policy whether We agree with it now or not, who cares? It's gone. We don't want to spend more time and money litigating it. But apparently at least one judge on the ninth circuit does want to have it rehearsed and called for a vote. So now a vote will be held. And then they'll decide whether to request a briefing from the parties. Or if the judge fails to secure a majority of votes, then it won't go on. Bonk. But if if the judge does get a majority of votes, say yes, then it's it is going to join the the Qadri of the on box Second Amendment opinion. So

Tim Kowal  35:37
Well, before we move on from MacDougal. Jeff, did you have any any other questions about McDougal or? Yeah, well,

Jeff Lewis  35:44
I don't know. I don't have any questions about McDougal. I didn't know I you know, there was a footnote addressing the mootness issue. And I gotta tell you, COVID-19, and the way different States responded to COVID-19. You know, I've thought certain states should get kind of a mulligan on kind of how they responded to COVID-19. I was kind of surprised this case was disposed of on mootness grounds. Because I think if the governor and the counties had this to do again, they probably would be a little more restrained and a little more nuanced, and how they would do things if there's another wave of COVID in the future. So that was my only takeaway from McDougal. I did. If you wouldn't mind me pivoting here for a second. Tim, I did have a question about, you know, it's been in the news that California's legislature is going to toy with a Texas style private bounty on gun manufacturers, modeled after was Senate Bill eight, where people in California can file a private lawsuit against gun manufacturers, etc. If they feel that state gun laws were violated. And I was wondering, I don't want to get a prejudice at your clients or any future work. But did you have any thoughts about whether or not your firm might get involved in challenging that legislation? What are your thoughts about that case? Or that law?

Sean Brady  36:59
I don't I I guess I got to be careful about how exactly I answer this. It can't really say, Yes, we are. No, we're not considering challenges. I will point out that this was the subject, that the abortion version of this law was the subject of a case that went up to the Supreme Court, where the Supreme Court said, you know, it's not right, right. We're not going to hear this, because we're not going to challenge whether this is a restriction on anybody's rights until something actually happens, just the mere ability for somebody to do it, to bring one of these cases, as a private individual enforcing sort of the government's wishes or laws, we're not going to weigh in until we actually have one of those cases before us. So, you know, we'll see whether we're able to, you know, bring that but I suspect if people actually start bringing those types of challenges, that it would be fairly natural for those who are subjected to those types of lawsuits to, you know, reach out to our firm or people, you know, like us, you know, I handle these similar types of cases by the government, usually brought by the government or a private plaintiff who claims a specific injury. So,

Jeff Lewis  38:18
well, yeah, let me say, you know, as a lawyer is probably never going to be involved in one of these cases, so I can be maybe a little more freer with my thoughts. I, you know, I think I'm counting the votes correctly on the Supreme Court, the Supreme Court is going to ultimately uphold SBA terms of the private bounty, kind of running around the government action. And I gotta tell you, it's wrong. It's wrong outcome in my mind, it'd be wrong outcome for California to allow lawsuits against the gun manufacturers, by private citizens and calling that a fiction of well, it's not state action, it's a private lawsuit. I think it's a ridiculous fiction and both lawsuits need to go in the trash but are both laws. That's just me.

Sean Brady  38:56
I I'm not necessarily in disagreement with you I especially in the context of the firearms it's not just because it's firearms, I mean, I think the abortion version is is a little bit more clear and what the standard is in that it's like you know, is there a heartbeat although even that is like, how is a count as a non Doctor gonna tell you whether there's a heartbeat or not right? So it's the same thing with firearms No, I mean, we literally the state will say that you need an expert to tell you whether something is an assault weapon. So how is you know, the John Q citizen going to enforce you know, they might see an AR 15 on the wall at a gun store they go this guy selling machine guns or, or assault weapons and they don't know the nuance that it's not and so you're gonna drag all these gun stores into court who are abiding by the law, and and then they're gonna have to, you know, pay me to go tell the judge like, No, this isn't an assault weapon and this case should be dismissed. But then what what What are the consequences of that? Like the Oh, huge

Jeff Lewis  40:02
chilling effect is, you

Sean Brady  40:04
know, in effect, it's going down the PRCA, which is, you know, the Protection of Lawful arm arms, you know, Commerce Act of the federal protection of people. So, yeah, there are certainly problems and it, especially in the gun world where the legislature thinks they know. But getting back to my original statement about my favorite case, most of these laws are vague. And they really have no idea what they're talking about. They think they know what they're talking about. And they think, you know, they know what an assault weapon is. But when you get get down to it, you know, they realize like, Oh, our argument is that assault weapons, make the features that make a rifle, an assault weapon, make them more accurate and more user friendly. Yes, that's a good thing in our world. But apparently, in the government's world, that's a bad thing. That was literally their argument in the ninth circuit. And so, you know, there's a whole lot of problems with having non governmental entities, you know, enforcing enforcing laws that people don't understand.

Tim Kowal 41:09
That's a good, that's a good setup, Jeff, I appreciate your your principled approach and seeing the two things, you know, by the same principle, but to Shawn's point, you know, that no, two things are identical. So maybe there's a way to distinguish the two, I'm sure there are guns and, and, and, and abortion are not the not the same thing, obviously. But whenever you you have a principle that is so similar, when you when you to distinguish them, even if there's a legitimate distinction, it can be a hard sell on the public, when when there's so much at stake in both of those issues.

Jeff Lewis  41:42
Yeah, such an emotional issue. I can't wait to see how the public or the special interest groups line up either for or against SB 1594. Because you had to come after the gun industry today. And tomorrow, it'll be some other industry. And it also comes

Sean Brady  41:56
down to to have a connection, in that there are attacks from on both that are or that are solely designed to, to obstruct the people who want to do that, right. So like, granted, in abortion, it's a little bit more difficult, right? Because you want to obstruct abortion because you think it's murder, right. So I understand that. But like, there was a Texas law years ago that went up to SCOTUS, where it wasn't a direct, like, let's determine the constitutionality of abortion, it was, let's just put all this red tape and you know, you have to go to a facility that has 12 foot wide hallways, and, you know, is to within two miles of, you know, a hospital, you know, I mean, there was just all this red tape that was obviously designed not to, not to address the constitutional question, but just to hinder and kind of, like, make it impossible. And that's the same thing with guns that people don't realize is, you know, almost all of these laws are, are especially now lately, you know, the California has passed every restriction you possibly ever want the gun control groups. A decade or so ago, were literally like, okay, Brady, he was like, Oh, we already passed everything we were done here. And and, you know, these new interest groups, like, well hold my beer, let me show you, you know, I could pass all these new ones that, you know, are just designed to put red tape and lay or red tape and hinder people in exercising the right rather than addressing, you know, the constitutionality of like a real law. So I, you know, I think there's a lot of similarities there.

Tim Kowal  43:34
Well, I don't like to go from one heavy subject to an even heavier subject, but Ukraine is in the news. And and, you know, listening to that hearing about it, I was reminding reminded of how judge Kozinski talked about the Second Amendment, famously calling it the doomsday provision, referring to when the when the government is no longer the the preventer of violence, but the source of violence, then the right of self defense and to bear arms is, is all that you have left, and that's why it's a natural, right. And I wondered, Jeff, did you want to chime in on that? Well,

Jeff Lewis  44:08
you too, are seeking in Second Amendment cases, and I'm not I stopped with the First Amendment right. That's where my practice starts and ends. But so I never heard of this provision, the doomsday provision or this case. So I went back and I read it, and I think maybe our listeners might be interested to see what Kaczynski said in light of what's happening in Ukraine and everything else. He said. The second amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed, where the government refuses to stand for reelection, and silences those who protest where courts have lost the courage to oppose or can find no one to enforce their decrees, however improbable those contingencies may seem today. facing them unprepared is a mistake a free people get to make only once as a fascinating quote by Kaczynski. I appreciate you guys bringing my attention to it.

Tim Kowal  44:57
Yeah, that was a terrific opener. One Deshaun What are you? What are your thoughts about the importance of the Second Amendment in the US, but what I would call it I think the Kaczynski believed was the was a natural right of self defense and to bear arms against aggression. Even even when you have an otherwise civilized government. They, they can often fail. I've we've, as we've seen in our own country, and as we're witnessing now in Ukraine and Russia, I wonder if you if you thought that's going to affect the discussion on on gun rights in the United States?

Sean Brady  45:30
Yeah, I doubt it. I mean, obviously, I agree with Judge Kozinski. But I think both those who are pro second, I've kind of already understand that view. And those who are opposed, will will, you know, say that this is that's something foreign, right, our neighbors are Canada and Mexico, what are the chances of that ever happening? You know, we don't live in that neighborhood. And so it's different, of course, you know, Kaczynski, his view, which we all share is that it's a natural human right? Regardless whether you live in Ukraine, or Botswana, or the United States or Cambodia, whatever, you you know, you have that right. And so, you know, I just think people are to sort of tied up in their own in their own bubble to realize the universal application of that doctrine. And so I unfortunately doubt it will change the discussion at least with maybe a few and it might give those of us who are of that persuasion, one more arrow in our quiver to to shoot but it's probably gonna miss its mark.

Tim Kowal  46:34
You Yeah, you got right to the to the nub of why I think Judge Kozinski is formulation there. While while eloquent and powerful. I don't think that's the best argument for the natural right of self defense. I think the the best argument is based on incidents we've seen in our own country, such as in 2005, after Hurricane Katrina, I recall NPR, we had an article about there were reports of roaming marauders in the wake of Hurricane Katrina, people just looking to go and rob violently robbed people of what few possessions they had left. And then people realize they need to be to be ready to defend themselves. And so there was a spike in gun ownership after Hurricane Katrina, and people were reminded that, that, that hopefully not very often, but from time to time, you can expect that the thin mask of civilization may slip, and you need to be prepared for that eventuality.

Sean Brady  47:27
Well, speaking of masks, I mean, more, more recently, the past two years have seen the record gun ownership and purchasing in light of COVID, and the Summer of Love, as they call it with all the BLM and Antifa writing. I mean, there, there were, I think 2020 Was it 2020 or 2021, I think was 2020 was a the record for most firearm purchases and 2021 was, you know, not too far behind. And so I think people have you seen how, you know, while Thankfully, it didn't really happen. I remember the early days, the pandemic and being like, you know, anything could happen right now that you don't know how people will react, and when they're desperate until they do and unfortunately, it never really got to that point. But you know, there were a lot of people who were seeing stuff on fire on their TVs, and seeing people act, you know, whatever side you are on the COVID thing acting differently than you and seeing you as the enemy or, you know, doing things wrongly. And so, yeah, I think people got a wake up call back to reality, we've been so spoiled as Americans to have no concept of of anything close to what Ukrainians are going through, or people just normal, you know, in other countries where, you know, we don't understand that the level of criminality where people just can't even protect themselves. You see it in Mexico with, you know, the against cartel, you know, these people who aren't themselves because they're literally chattel to these people to these to these gangs. And We fortunately have at least somewhat the rule of law, the United States that doesn't allow that on like a systematic basis. So yeah, I think we have we're clueless to that.

Tim Kowal  49:19
But with that, with that brief interlude into doomsday and Armageddon in the heart of darkness, like we can now give our listeners some levity and talk about a couple, just a couple of procedural issues that I wanted to ask you about. Sean, nationwide stays as appellate attorneys, I'm always fascinated to, you know, to see litigation, it goes up to the to the district court, District Court will find a law invalid. And and then suddenly, it's there's a nationwide stay on it issued by a single district court judge. Does that happen very often in the Second Amendment amendment context?

Sean Brady  49:54
Yes, we it's usually not. I guess I shouldn't say nationwide. because most of the laws that are being challenged are not federal, the Federal is kind of interesting. People always talk about, you know, the probe second outside being anti federal government and you know, the ATF is the enemy. But really, the ATF and the feds are relatively mild compared to a handful of states. And it really is only a handful of states that are passing gun control, you know, California, Maryland, New York, New Jersey, Connecticut, beyond those and a handful of cities, right, Chicago, the Feds really don't don't pass anything that's that draconian now you're obviously going to find pushback from some who, you know, want machine guns and all that stuff. And I'm not. I'm not taking a position on that, because I don't want to anger anybody. But I'm just saying the federal laws aren't really what's at issue the state laws are. So we do have instances, though, where it's happening in several of our cases, as a matter of fact, the case we just filed a cert petition in yesterday, in the challenge to California, so called large capacity magazine ban, which is Duncan B. Besseres. The name of the case that happened? Because what, what California did was they ban the possession of large capacity magazines. Originally, it was just a ban on the acquisition. And then they they always said for 20 years, oh, we're not going to ban possession. And, you know, the slippery slope that's always mocked, right? Came 20 years later, and the state said, now we want them now you got to get rid of them. And we made a second amendment and a takings argument. And so when we prevailed, the the government asked for a stay of the ruling at the lower court when we prevailed on summary judgment. And the judge did not grant the stay for a week, even on the acquisition piece. So we in the in the in the gun world in generally refer to that week as freedom week, where Californians purchase probably over a million of these previously prohibited magazines, and then the trial court judge, realize that the Ninth Circuit was going to put a kibosh on that. And we sort of we knew that the judge knew that. So we basically said, our position is it's fine if you want to stay the the injunction on the acquisition piece, but you certainly should not stay the injunction on the possession piece, because then everybody's got to get rid of their stuff. And then you just moved in our case. And so and their their, you know, their harm is now set in stone, you're done. So we got that relief. And then we prevailed at the appellate level in the ninth circuit before a three judge panel, so we didn't have to worry about that. And then they took it on Bach, of course, because that's what they do. And the the Arbok panel obviously reversed us and we lose, but we made the same appeal. Go ahead. You know, you can you can enforce the injunction on the or I'm sorry, it's the reverse. You can basically have the ruling apply to the acquisition piece, but you should not be enforcing it against the possession piece and they agreed and that's where we're at as we go to SCOTUS, and we'll see what SCOTUS does, and I thought his SCOTUS will hopefully GVR all these these cases, once they set out a new standard in the Bruin case, the New York case, per our amicus brief, you know, they'll set out a new standard and send all these cases back home for another look.

Tim Kowal  53:39
It's always it's always a tough gear change from the from the trial court to the Court of Appeal. And you have to you have to be prepared to think fast about, you know, what are you going to do about about the stays and injunctions? And yeah, that's, that's, that's an interesting story about how, yeah, just in the space of a weak, you really, really created a kind of a policy shift in the state through the through the court and perhaps unwittingly. Okay. One other one other appellate, that kind of procedural issue. I wanted to ask you about amicus brief, so we talked about your amicus brief, I want to ask you more generally about amicus briefs, how important are they to your to your cases? I mean, when you're when you're taking it up, you know, to the ninth circuit, and certainly to the to the Supreme Court. You know, I think you want to get amicus briefs but you know, is that just Well, yeah, we we ought to have it? Is it kind of an afterthought, just kind of a box checking operation? Or are they really crucial?

Sean Brady  54:31
I think they're crucial. You know, you see it all the time, that the courts will glom on to something they see in an amicus brief because you can only address so many issues. Right. And you don't you want to as the as the main party. You want to focus in on the heart of the issue, right, even though you can go off on so many different tangents like with respect to the amicus brief, we filed in in the New York case, I'm sure the petitioners would love to explain that. How there's all these other issues going on that could be addressed and should be addressed and all the shenanigans going on with the lower courts, including the Second Circuit in that case, but they simply don't want to overwhelm the court. But the court is looking at these things. I mean, you could tell that that the justice is I believe Gorsuch and God, I forget, maybe it was Justice Cavanaugh, they both were asking this question about the the changing of the standard of review, that should be applicable in Second Amendment cases and sort of playing off of our MC is pretty pointed out, like these issues. And they so, you know, would the court have, you know, been in that mindset to address these more generally applicable issues? Have they not seen amicus briefs? You never know,

Tim Kowal  55:51
you know, you want to give them a menu of options, right? You don't want to give them the whole spaghetti dinner in your one brief. But but if they, if they have an appetite for it, let them reach for one of the other briefs.

Sean Brady 56:00
Exactly. Exactly. That's

Tim Kowal  56:02
a good way to put it. Also, on the subject of amicus briefs, I listened to an appellate seminar recently, and they were talking about ethical issues of disclosure in amicus briefs. And I thought to myself, you know, there's a there's a rule you have to disclose what your interest is, and and some of these other other ethical issues are, you know, if you, you know, if you're, you know, do you have to disclose who the if you're working for a nonprofit or writing for a nonprofit, do you have to disclose who the funders are of the nonprofit? Maybe they you know, what are they're interested they have, you know, is someone have some skin in the game here? And I got, I thought to myself, yeah, sure, everyone. Everyone's concerned about Kui Bono, you know, who who benefits who profits from from a case? But then I thought, you know, these are just briefs, there's legal briefs, they're just arguments, who's scared of an argument, you know, even if someone was given skin in the game is making an argument. It's just an argument, you can accept it or reject it. I wonder if you have thoughts about that? Maybe? You know, yeah, no, con,

Sean Brady  57:00
I hear your I think that there's potentially arguments both ways. I think the rules trying to prevent is two things. One, just a very deep pocket being able to find just a ton of briefing and get around the the limitation, like you said, that doesn't address your point of like, so what it's just new arguments, the court can reject it or not, but you know, that there is some to knowing the source of the argument as well, to sort of understand its its influence. But the other issue, I think, is you have interested parties, which I guess is sort of the same thing, like these, and these gun control groups will advise the government on as their counsel on how to how to pass these laws, what laws to draft right in the lower court, though, they're essentially their trial counsel, and then to act as an amicus, which you're not an amicus, you are a party, essentially, or you are Counsel of a party,

Tim Kowal  58:03
then you're just getting around the word count limit. Yeah, it's

Sean Brady  58:06
been around the word count. And again, it shows, you know, look, these people are pretending to be sort of disinterested, no, no, Nick is disinterested, otherwise, they would file a brief but like, you know, they don't have skin in the game. And they do and, you know, I don't know it. I hear you. And it's, it's not something I feel extremely strongly about, but I think there are reasons for the rules, and that's why we adhere to them very diligently.

Tim Kowal  58:34
Alright, well, with that brief light segment, now we're back into the heavy stuff, and we're going to do the lightning round. Oh, Jeff, this is uh, this is your baby.

Jeff Lewis  58:45
Alright, this is where Tim goes and gets his coffee. And we're going to go through some of the most vexing questions that concern a pellet nerds around the world. We're looking for short responses, one sentence one word, do your best font preference century schoolbook. Garamond or something else?

Sean Brady  59:05
I defer to my colleague Anna barber on this I have no preference she certainly would. And I believe it's Jeremy Monder Arrowmont however you pronounce it

Tim Kowal  59:15
alright, if I've noticed that you don't even list times new roman as an available

Sean Brady  59:21
that would probably be my

Jeff Lewis  59:23
nor nor do we give people the option of like using WordPerfect to assemble briefs we don't really discuss that either. You're right. Yeah, I wonder if all these questions here with Sean's get defer to his partner. We'll we'll try one more super important question. Two spaces or one after a period to old school very good. I will go one more pled or pleaded when writing in a brief

Sean Brady  59:49
please play. Les Are you past tense for the past tense? Yes,

Jeff Lewis  59:54
that's it. All right. And the final question for our lightning round. When you argument headings in your brief, all caps, initial caps or sentence case.

Sean Brady  60:07
It depends at where, what heading your T right? The Roman heading caps, then a is initial caps. Then beyond that Nokia. All right. Very nuanced. Once we publish our, a hundredth episode of the show, you'll get a coffee cup that says I survived the lightning round, uh, back to you to, and I also noticed we, you're not asking our guests, if they use the Oxford comma, which role, the only one rule I really care about.

Yeah. That goes without saying I would. Who, who doesn't it?

Jeff Lewis  60:38
I recognize I'm on the losing war on that one.

Tim Kowal  60:42
All right. Well, I think that wraps up, Jeff. So if you have future, if you have suggestions for future episodes, please email us at info@calpodcast.com and in our future episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trail.

Anouncer  61:02
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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