(550 words)
As predicted, the opinion of Judge Benitez was appealed to the Ninth Circuit court. There it went before a three judge administrative panel, just like Duncan v. Bonta should have.

Two members of the panel decided to grant the stay pending appeal as an administrative stay. The third judge, Circuit Judge Callahan, did not want to issue the stay pending appeal.

The good news out of this is that the administrative panel has scheduled this for a hearing in December 2023. They have already told all the parties that there will be no extensions of time approved. Briefs are due from the state on November 9th, answering brief on November 22nd, final response brief on November 29th.

For an appellate court, this is freaking fast.

In light of this court’s published order granting a stay in Duncan v. Bonta, 83 F.4th 803, 805–06 (9th Cir. 2023) (en banc) (concluding that the attorney general of California is likely to succeed on the merits and has shown that California will be irreparably harmed absent a stay), and the similarities between Duncan and this case, we grant appellants’ motion (Docket Entry No. 6) and administratively stay the district court’s October 19, 2023 permanent injunction and judgment. In granting an administrative stay, we do not intend to constrain the merits panel’s consideration of the merits of this appeal in any way. The administrative stay shall remain in effect until the merits panel decides the appeal or issues an order lifting the stay.

We sua sponte expedite this appeal. The opening brief is due November 9, 2023. The answering brief is due November 22, 2023. The optional reply brief is due November 29, 2023. No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(1).

The Clerk will place this appeal on the calendar for December 2023. See 9th Cir. Gen. Ord. 3.3(g).
Motion for Stay, Miller v. Bonta, No. 23-2979 (9th Cir.)

Circuit Judge Callahan dissented in part:

I would deny appellants’ motion for a stay pending appeal. I do not believe we are bound by the published order in Duncan v. Bonta, 83 F.4th 803 (9th Cir. 2023), and I do not believe appellants have otherwise met their burden of showing a likelihood of success on the merits or that they will suffer irreparable injury absent a stay. I concur in the order insofar as it expedites this appeal.

The short of this is that this panel kicked responsibility down the road. They dumped the reasoning on the en banc panel, which said that the state would win on the merits because many district courts agreed with the state’s position.

The state, in Duncan v. Bonta claims that The People being able to purchase and possess semi-automatic firearms the state deems “scary” will cause the state irreparable injury. That’s not how this is supposed to work.

Regardless, if this panel hears the case on the merits, we should have an opinion in early 2024. At which time the state will appeal for an en banc panel. If the plaintiffs (good guys) lose, they should appeal directly to the Supreme Court.

Final resolution of Duncan and Miller is likely 9 to 12 months out.

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By awa

3 thoughts on “Miller v. Bonta, Stayed pending Appeal”
  1. I find myself hoping that enough of these cases bubble up to the Supreme Court, that SCOTUS gets irritated enough to say, “We’re done – all laws relating to gun purchase, fabrication, possession and carry are unconstitutional. Full stop, done.”
    That won’t happen, but a guy can dream.

    1. Sure, that would be a dream. It wouldn’t change what the bad guys do, though. They don’t understand or obey such rulings.

  2. All I can do is shake my head at this point. They’re not using case law or a common reading they’re ruling from their shopping list of wants.

Only one rule: Don't be a dick.

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