Good movie on Netflix: Extraction 2
No politics, just glorious action and beautiful violence.
How to hide the lead, 2nd Cir. and 3rd Cir.
Back in December 2022 in the case of Antonyuk v. Hochul the state didn’t like the District Court enjoining the New York State CCIA. New York’s Bruen spam response law.
Appellants request a stay pending appeal of the district court’s order dated November 7, 2022 (N.D.N.Y. 22-cv-986, doc. 78), enjoining Appellants from enforcing certain aspects of New York’s Concealed Carry Improvement Act (“CCIA”). Having weighed the applicable factors, see In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007), we conclude that a stay pending appeal is warranted. Accordingly, upon due consideration, it is hereby ORDERED that the motion for a stay pending appeal is GRANTED and the district court’s November 7 order is STAYED pending the resolution of this appeal. To the extent that the district court’s order bars enforcement of the CCIA’s provisions related to persons who have been tasked with the duty to keep the peace at places of worship, airports, and private buses, such categories are EXCEPTED
from this order. Appellees’ motion to expedite the resolution of the matter is GRANTED.
—Antonyuk v. Hochul, No. 22-2972 (2d Cir.)
from this order. Appellees’ motion to expedite the resolution of the matter is GRANTED.
—Antonyuk v. Hochul, No. 22-2972 (2d Cir.)
This is the entirety of the order granting the stay. This was in response to 180+ pages that the District Court wrote explaining why the CCIA was a crap law and that the state was likely to lose on the merits.
The entire explanation exists somewhere on page 170 of a 2007 2nd Cir. Opinion.
Digging down the rabbit hole, we find:
The four factors to be considered in issuing a stay pending appeal are well known: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;[1] (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987); see Cooper v. Town of East Hampton, 83 F.3d 31, 36 (2d Cir.1996). We have applied these same factors in considering whether to vacate a stay. See Mohammed v. Reno, 309 F.3d 95, 100 (2d Cir.2002). We have also noted that the degree to which a factor must be present varies with the strength of the other factors, meaning that “`more of one [factor] excuses less of the other.'” Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir.2006) (quoting Mohammed, 309 F.3d at 101).
Having heard the interlocutory appeal after full briefing, we are in a position to evaluate the Appellants’ probability of success in a more focused way than could the motions panel. Although we are not prepared at this time to resolve all of the many issues arising on the merits of the appeal, we can conclude that there is now a lesser probability than might have previously appeared that the Appellants will succeed in preventing at least some of the Plaintiffs’ claims to proceed into at least the discovery stage of the litigation.
The second factor irreparable injury to the stay applicants remains the same as before: any proceedings in the District Court pending appeal will irreparably impair, at least to some extent, their alleged claim to immunity from suit. The third factor substantial injury to the parties opposing the stay has increased in significance with the passage of time since among the Plaintiffs are many people with life-threatening injuries, some of whom have died since the litigation began.
This effect of the passage of time upon the Plaintiffs’ interests also has a bearing on the public interest, which is to be considered as the fourth factor, although there are public interest considerations on both sides. On the one hand, there is a public interest in having any of the Plaintiffs who might be entitled to recovery receive compensation while still living and able to use it to cover medical costs and improve the quality of their lives. On the other hand, there is a public interest in vindicating the immunity of any of the Defendants who might be entitled to immunity from suit. At this point, we cannot predict whether any Plaintiffs will ultimately obtain compensation if immunity from suit is not available to the Defendants, nor are we prepared to adjudicate the jurisdictional challenges and immunity claims without a thorough consideration of the substantial issues presented to us. Nevertheless, a decision whether to maintain the stay must be made. On balance, we conclude that the public interest favors permitting pretrial proceedings to resume, *171 thereby hastening the trial that might result in compensation for at least some Plaintiffs during their lifetimes, even though that course will impose upon the Defendants the burdens of pretrial discovery, thereby denying them immunity from suit during the interval from now until such time as it might ultimately be determined that their claims for immunity from suit are valid.
—In Re World Trade Center Disaster Site Litigation, 503 F.3d 167, 170,171 (2d Cir. 2007)
The first paragraph in the quote is the standard reasons for why an injunction is granted because that is the same reason for a stay to be granted stopping an injunction.
we can conclude that there is now a lesser probability than might have previously appeared
—In Re World Trade Center Disaster Site Litigation, 503 F.3d 167 That wording, applied to the Antonyuk reads like “we know better than the District Court because we said so.”
It also seems to say that the question of irreparable injury fails. While we know that any constitutional right denied is an irreparable injury, the courts have often balanced the Second Amendment injury away. In the Court’s mind, it is better for a gun owner to be denied their rights than to have the state’s legislation enjoined.
Finally, it seems to say that a delay is not really a problem because “PEOPLE WILL DIE IF THIS LAW ISN’T ALLOWED TO STAY IN PLACE!!!”
The point being, that we had to dig into a different opinion and need to guess at what the 2nd Circuit Court’s reasoning is. Because we are guessing, it is much more difficult to say “you are wrong” when taken up by the Supreme Court.
In addition, in the cited case, World Trade Center Disaster Site Litigation, the 2nd Circuit did not actually cite to the Supreme Court. All of their citations, in the quoted work, are back to themselves. Or, as my mother said on more than one occasion, “If I’ve told you once, I’ve told you a thousand times.” That doesn’t mean her reasoning was any better this time than it was in the previous 999 times.
If we needed to know more about the reasoning, we would have to go read those other opinions.
We see the same sort of general waving of hands in Koons v. Platkin. The Court’s entire reasoning is expressed as as we conclude the applicable factors warrant such a stay, see In re Revel AC, Inc., 802 F.3d 558, 568 (3d Cir. 2015)
—Ronald Koons v. Attorney General New Jersey ECF No. 30, No. 23-1900 (3d Cir.). We have to look at the cited opinion and then guess at what words out of that page were being used to justify this stay.
The Sliding-Scale Approach to Balancing the Stay Factors
Under Federal Rule of Bankruptcy Procedure 8007, a party can move to stay the effect of a bankruptcy court order pending a resolution on appeal. See Fed. R. Bankr.P. 8007. The factors considered “overlap” the familiar ones courts look to in ruling on applications for preliminary injunctions. See Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (observing that “similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined”). To repeat essentially what was already noted above, the following factors come into play:
- whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits;
- whether the applicant will be irreparably injured absent a stay;
- whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
- where the public interest lies.
We see the same language as the 2nd Circuit Court used, that’s because it is common across all jurisdictions. Guessing makes me think that where the public interest lies
might hold more weight with the Court.
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). In order not to ignore the many gray shadings stay requests present, courts “balance[e] them all” and “consider the relative strength of the four factors.” Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir.2011) (quoting Fargo Women’s Health Org. v. Schafer, 18 F.3d 526, 538 (8th Cir.1994) (internal quotation marks omitted)); see also 16A Charles Alan Wright et al., Federal Practice and Procedure § 3954 (4th ed. 2008) (“The four factors should be balanced; thus, for example, if the balance of harms tips heavily enough in the stay applicant’s favor then the showing of likelihood of success need not be as strong, and vice versa.” (footnotes omitted)).
—id. at 568
—id. at 568
Here, the 3rd Circuit brings up “balance” multiple times. This almost always results in the court balancing rights away.
“[T]he most critical” factors, according to the Supreme Court, Nken, 556 U.S. at 434, 129 S.Ct. 1749, are the first two: whether the stay movant has demonstrated (1) a strong showing of the likelihood of success and (2) that it will suffer irreparable harm — the latter referring to “harm that cannot be prevented or fully rectified” by a successful appeal, Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 386 (7th Cir.1984) (Posner, J.). Though both are necessary, the former is arguably the more important piece of the stay analysis. As Judge Posner has remarked, it isn’t enough that the failure to obtain a stay will be “a disaster” for the stay movant but only a “minor inconvenience to the defendant,” as “[e]quity jurisdiction exists only to remedy legal wrongs; [thus,] without some showing of a probable right[,] there is no basis for invoking it.” Id. at 387.
—id.
—id.
As I dig through this litigation, I find that concerns that we have about Second Amendment Rights are echoed by other groups, and we see the same sorts of things happening. I don’t know anything about the case cited here. What I find interesting is that the Court pulled a small amount of text from a Supreme Court Opinion, Nken but then turned to the 7th Circuit Court to find an interpretation of those words that this Court approves of.
It appears that the Court is saying that winning on the merits is more important than the harm being caused to either party. That sounds good…
And finally, For our Court, a sufficient degree of success for a strong showing exists if there is “a reasonable chance, or probability, of winning.” Thus, while it “is not enough that the chance of success on the merits be `better than negligible,'”, the likelihood of winning on appeal need not be “more likely than not,”
—id. at 568,569 internal citations omitted.
The Third Circuit Court doesn’t think there is a high enough probability of the plaintiffs winning to allow the injunction to remain in place. They believe that the sensitive places language of Chapter 131 will be found constitutional.
Bibliography
In Re World Trade Center Disaster Site Litigation, 503 F.3d 167 (2d Cir. 2007)
Revel Ac Inc V., 802 F.3d 558 (3d Cir. 2015)
Ronald Koons v. Attorney General New Jersey ECF No. 30, No. 23-1900 (3d Cir.)
Antonyuk v. Hochul, No. 22-2972 (2d Cir.)
Update on Ronald Koons v. Attorney General New Jersey (23-1900)
The Third Circuit Court of Appeals has ordered an expedited briefing schedule. The original order was Appellants’ opening brief and the joint appendix must be filed on or before July 7, 2023; Appellees’ briefs must be filed on or before August 4, 2023; Appellants’ reply brief, if any, must be filed on or before August 18, 2023. The Court intends to schedule the appeal for disposition during the week of September 11, 2023
—Antonyuk v. Hochul, No. 22-2972 (2d Cir.) The state asked to have it delayed, and the new briefing schedule is Appellants/Cross-Appellees and Intervenors shall file their opening briefs and the joint appendix on or before July 20, 2023; Appellees/Cross-Appellants shall file their opening/response brief on or before August 10, 2023; Appellees’ shall file their response brief on or before August 21, 2023; Appellants/Cross-Appellees and Intervenors shall file their response/reply briefs on or before September 4, 2023; and Appellees/Cross-Appellants shall file their reply brief on or before September 18, 2023
—In Re World Trade Center Disaster Site Litigation, 503 F.3d 167, 170,171 (2d Cir. 2007)
In the meantime, the Circuit court has stayed parts of the injunction: The requested stay is GRANTED as to the preliminary injunction of N.J. Stat. Ann. Section:Section: 2C:58-4.6(a)(6), (a)(9), (a)(10), (a)(12), (a)(15), (a)(17), (a)(18), (a)(21), as we conclude the applicable factors warrant such a stay
—In Re World Trade Center Disaster Site Litigation, 503 F.3d 167
What does that mean? It means that the following places are still “sensitive” places where carrying firearms is verboten.
- within 100 feet of a place where a public gathering, demonstration or event is held for which a government permit is required, during the conduct of such gathering, demonstration or event;
- a nursery school, pre-school, zoo, or summer camp;
- a park, beach, recreation facility or area or playground owned or controlled by a State, county or local government unit, or any part of such a place, which is designated as a gun-free zone by the governing authority based on considerations of public safety;
- a publicly owned or leased library or museum;
- a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises;
- a privately or publicly owned and operated entertainment facility within this State, including but not limited to a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held;
- a casino and related facilities, including but not limited to appurtenant hotels, retail premises, restaurant and bar facilities, and entertainment and recreational venues located within the casino property;
- a health care facility, including but not limited to a general hospital, special hospital, psychiatric hospital, public health center, diagnostic center, treatment center, rehabilitation center, extended care facility, skilled nursing home, nursing home, intermediate care facility, tuberculosis hospital, chronic disease hospital, maternity hospital, outpatient clinic, dispensary, assisted living center, home health care agency, residential treatment facility, residential health care facility, medical office, or ambulatory care facility;
Bibliography
In Re World Trade Center Disaster Site Litigation, 503 F.3d 167 (2d Cir. 2007)
Revel Ac Inc V., 802 F.3d 558 (3d Cir. 2015)
Ronald Koons v. Attorney General New Jersey ECF No. 30, No. 23-1900 (3d Cir.)
Antonyuk v. Hochul, No. 22-2972 (2d Cir.)
It is a conspiracy to trans the children
From the UK Daily Mail:
Dozens of Midwestern teachers met online this week and traded tips on helping trans students change gender at school without their parents’ knowledge, while criticizing a raft of new Republican laws on sex and identity.
DailyMail.com gained access to an online session hosted by the Midwest and Plains Equity Assistance Center (MAP), which is funded by the Department of Education, attended by some 30 teachers from Michigan, Iowa, Ohio, Illinois and beyond.
In the four-hour workshop, they discussed helping trans students in the face of new laws in Republican-run states on gender, pronouns, names, parents’ rights, bathroom access, and sports teams.
Some teachers said they followed the rules, but others discussed being ‘subversive,’ how their personal ‘code of ethics’ trumped laws, and how to ‘hide’ a trans student’s new name and gender from their parents.
In the discussion and role-play sessions that followed, the teachers, administrators, principals, and counselors spoke about trans students and their families in a way that would alarm many parents.
Kimberly Martin, the DEI coordinator for Royal Oak Schools, which serves 5,000 K-12 students in Michigan, spoke about helping trans students keep their gender change a secret.
Let me get this straight.
A bunch if teachers met online, to work together on how to push children into gender transition, in violation of both the law and the rights of the parents to have and say in the lives of their children.
There’s a word for that.
Conspiracy.
Yes, it is in fact a conspiracy by activist teachers to secretly trans children.
This is more than just a social contagion, this us a malicious conspiracy.
This should be top news throughout the country.
These teachers should be thrown in prison for subverting the law and parents to emotionally and physically harm children with their radical gender ideology.
Tuesday Tunes
The 19th Amendment
I know that AWA was looking for a patriotic song. But the way that he explained it was that he wanted a song, a tune, that spoke of my pride for my country.
I have always been a Dolly fan, and this song is a wonderful explanation as to why. Here she is, singing about the women that stood up and fought back, that refused to back down, the blocked the streets and were loud and had signs and got in people’s faces and wouldn’t take no for an answer, and secured the right to vote for women in America. I think it’s hard for the young women of today to understand that only a hundred years ago, we didn’t have the right to vote. We didn’t have a lot of rights. We couldn’t have credit cards, and I’m pretty sure that some of us still couldn’t on land at the time. And that lack of recognition of our sovereign rights as human beings was held back by people who were afraid of what women might do with their vote.
They should have been afraid. Women have been strong voters. That’s changed in the last few years however, and that’s a problem. It’s time for our young women to stand up, and our young men too, and make sure that the right to vote doesn’t cease to be recognized. People might say it’s never going to go away, but how many rights have trickled away because someone didn’t stand up for them? How many rights of disappeared because someone didn’t use them or educate themselves about them? Too many.
Welcome to America. In America, rights simply are. Some are recognized, because they are so important that it’s necessary for us as a country, as a free Nation, to outline them and clearly State them. They are protected rights, which is not to say that a piece of paper or an amendment created them. The right existed long before any piece of paper was written on. Rights are simply there, they are inherent to The human condition. I am extremely proud to live in a country where people can fight passionately to express their rights and their opinions, and where our rights that are protected are updated as we update our society.
Old News: The Hypocrisy of Gun Control and its partners.
The modern push for Gun Control can be traced to January 17, 1989 with the Stockton Schoolyard shooting where 5 children died. This is the even that coined the much maligned and now ridiculed “Do it for the children!” waved every time there is somebody under 19 as a victim of a crime involving a firearm.
Just 3 months later, another massacre occurred with a higher children body count, but it was barely mentioned by the Media or brought out at all by the “Do it for the Children!” pundits and politicians.
The instrument of death was not that evil AK 47 the media have been drumming about, but something as simple as a match or a lighter and possibly some accelerant, all easily obtainable and non-regulated to this day.
And if I am not mistaken, still the higher number of casualties per incident (setting aside 9/11 and the OKC bombing) were caused by arson.
But arson is not politically sexy, and it does not offer much to write about or to wax philosophically in front of a camera.
Time to yeet the neighbor’s dog
A heroic grandmother was violently mauled as she wrestled her neighbor’s violent pitbull with her bare hands to protect her two young grandchildren, leaving her dripping with blood after the dog tore chunks out of her face, legs and arms.
Rhonda Stickney, from Motley, Minnesota, said the dangerous animal lunged at her daughter Tiffani, 27, grandson Jaxsyen, four, and Keyahra, two, as they stood in her doorway.
The giant dog went on to tear chunks out of her arm and face. Stickney claims she then grabbed hold of the dog’s jaw to stop it from biting her further until the owner came over to wrestle it off and drag it inside.
The mother-of-five believes she will have scars for life on her chin, eye, arm and leg as a result of the incident.
She added: ‘My grandchildren saw the whole thing. My daughter was screaming. It tore at my face and latched onto my arm.
‘My arm was punctured so when they went to rinse it to clean it out, it ran straight out the other side.
She remains on medication months later and has to go to hospital twice a week to get her leg repacked.
Following the horrific ordeal, Stickney contacted the police. The dog was not destroyed but the neighbor was forced to put a microchip in the animal and make it wear a muzzle whenever it goes outside.
She added: ‘The police came over and they were going to deem it as “possible dangerous” but I pushed it and showed them the photos of my injuries and they deemed it as a dangerous dog.
‘They made her microchip it and wear a muzzle when it goes outside. That’s not ok when there are kids around.’
Explain to me how a dog that jumps a fence, attacks children, and rips holes in a woman’s face, leg, and arm isn’t pit down?
I’ve had to have wounds packed before. It hurts like a bastard.
I try to be neighborly, but I’d shoot the fucking dog.