Judge Roger T. Benitez On Judicial Standing

BY Herschel Smith
1 month ago

Dean Weingarten lifts some of the prose out of the most recent decision by Roger T. Benitez.  The case involves “A number of California residents, firearm businesses, special interest groups, foundations, and a political action committee [who] have organized to sue California AG Xavier Becerra et al, to challenge the constitutionality of California’s complex net of regulations for the ownership and use of various firearms the state deems to be “assault weapons.”

I would have suspected that if this case was appealed directly to the Supreme Court they would have found that there was no “standing” to sue if there was no arrest or loss of compensation.  In other words, I’m accustomed to seeing courts ignore such cases because of “standing.”

From the order:

It has long been the case that a plaintiff possesses Article III standing to bring a pre-enforcement challenge to a state statute which regulates the exercise of a federal constitutional right and threatens a criminal penalty. “When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). “In Virginia v. American Booksellers Assn. Inc., 484 U.S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to ‘knowingly display for commercial purpose’ material that is ‘harmful to juveniles’ as defined by the statute.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 160 (2014). Of course, “[s]uch challenges can proceed only when the plaintiff ‘faces a realistic danger of sustaining a direct injury as a result of the law’s operation or enforcement.’” Skyline Wesleyan Church v. California Dep’t of Managed Health Care, 968 F.3d 738 (9th Cir. 2020) (citations omitted). But the simple continued existence of the criminal penalty provision together with an absence of a defendant’s disavowal of prosecution satisfies the requirement of a credible threat of prosecution. Susan B. Anthony List, 573 U.S. at 164 (threat of future enforcement of the false statement statute is substantial with history of past enforcement).

The bar for standing is not particularly high. For example, organizations that have been “perceptibly impaired” by a government rule “in their ability to perform the services they were formed to provide” is sufficient for organizational standing. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1266–67 (9th Cir. 2020) (“The Organizations are not required to demonstrate some threshold magnitude of their injuries; one less client that they may have had but-for the Rule’s issuance is enough. In other words, plaintiffs who suffer concrete, redressable harms that amount to pennies are still entitled to relief.”). An organization has standing to sue on behalf of its members when “the interests it seeks to protect are germane to the organization’s purpose.” Sierra Club v. Trump, 963 F.3d 874, 883 (9th Cir. 2020) (also noting individual’s standing to challenge border wall construction based on: “concern[] that the wall ‘would disrupt the desert views and inhibit him from fully appreciating the area,’ and that the additional presence of U.S. Customs and Border Protection agents ‘would further diminish his enjoyment of these areas’ and ‘deter him from further exploring certain areas’ [while] worrie[d] that ‘construction and maintenance of the border wall will limit or entirely cut off his access to fishing spots’ along the border, where he has fished for more than 50 years.”).

Good.  This is a decent decision by a man with honor.  Maybe this case will appear before the Ninth Circuit and force them to make a decision, and then perhaps it will get a hearing before the Supreme Court.


Comments

  1. On October 25, 2020 at 8:55 pm, X said:

    Yeah.

    Well, I’m not so sanguine. I’ve actually been to court, and let me tell you, it sucks. My observation is that judges use the procedural thicket to cloak the fact that they’re making political decisions.

    Ultimately, judges make — well, judgments. That is to say, who does or does not have standing is a judgment call. And this is how we ultimately get screwed.

    A federal appeals court judge upheld New York’s total ban on AR-15 rifles by judging that they were “not in common use” because there is “ONLY” an estimated 15 million of them out of 300 million-plus firearms in the U.S. He also judged that that ban was NOT an infringement on the Second Amendment because people could still buy other types of firearms. That’s like saying that a ban on the Baptist religion does not violate the First Amendment because you can go become a Presbyterian.

    Similarly, the SCOTUS, including the late RBG, judged that the Heller decision should be applied to an incident in which a women used a taser against her abusive ex-husband. She did this because the victim was a woman who fit into the feminist “domestic violence” sob-story narrative. Yet SCOTUS has refused to apply Heller to “assault weapon” and magazine bans, and has refused to apply Heller to restrictive gun permitting and registration schemes in NY, MA, and NJ.

    So it’s all bullshit. The courts make political decisions, and then rationalize them post hoc with shovelfuls of BS.

  2. On October 25, 2020 at 9:07 pm, Fred said:

    Even if it gets a verdict favorable to gun owners, that decision will simply be ignored by jurisdictions as is Heller for example. The idea of fixing the system from within the system is no longer valid.

    An accurate assessment of the current state of a thing is a prerequisite to making a plan that actually might work to fix it. You know what needs to be done. You just don’t want to do it. DC needs to be burned to the ground and everybody there hanged from the neck until dead. Until that happens you, your children, and your children’s children will never be free again.

RSS feed for comments on this post. TrackBack URL

Leave a comment


You are currently reading "Judge Roger T. Benitez On Judicial Standing", entry #25984 on The Captain's Journal.

This article is filed under the category(s) Second Amendment and was published October 25th, 2020 by Herschel Smith.

If you're interested in what else the The Captain's Journal has to say, you might try thumbing through the archives and visiting the main index, or; perhaps you would like to learn more about TCJ.

26th MEU (10)
Abu Muqawama (12)
ACOG (2)
ACOGs (1)
Afghan National Army (36)
Afghan National Police (17)
Afghanistan (679)
Afghanistan SOFA (4)
Agriculture in COIN (3)
AGW (1)
Air Force (35)
Air Power (9)
al Qaeda (83)
Ali al-Sistani (1)
America (20)
Ammunition (125)
Animals (87)
Ansar al Sunna (15)
Anthropology (3)
Antonin Scalia (1)
AR-15s (255)
Arghandab River Valley (1)
Arlington Cemetery (2)
Army (77)
Assassinations (2)
Assault Weapon Ban (27)
Australian Army (6)
Azerbaijan (4)
Backpacking (2)
Badr Organization (8)
Baitullah Mehsud (21)
Basra (17)
BATFE (102)
Battle of Bari Alai (2)
Battle of Wanat (18)
Battle Space Weight (3)
Bin Laden (7)
Blogroll (3)
Blogs (22)
Body Armor (20)
Books (3)
Border War (11)
Brady Campaign (1)
Britain (38)
British Army (35)
Camping (4)
Canada (2)
Castle Doctrine (1)
Caucasus (6)
CENTCOM (7)
Center For a New American Security (8)
Charity (3)
China (13)
Christmas (11)
CIA (28)
Civilian National Security Force (3)
Col. Gian Gentile (9)
Combat Outposts (3)
Combat Video (2)
Concerned Citizens (6)
Constabulary Actions (3)
Coolness Factor (2)
COP Keating (4)
Corruption in COIN (4)
Council on Foreign Relations (1)
Counterinsurgency (216)
DADT (2)
David Rohde (1)
Defense Contractors (2)
Department of Defense (159)
Department of Homeland Security (26)
Disaster Preparedness (4)
Distributed Operations (5)
Dogs (12)
Donald Trump (26)
Drone Campaign (3)
EFV (3)
Egypt (12)
El Salvador (1)
Embassy Security (1)
Enemy Spotters (1)
Expeditionary Warfare (17)
F-22 (2)
F-35 (1)
Fallujah (17)
Far East (3)
Fathers and Sons (2)
Favorite (1)
Fazlullah (3)
FBI (32)
Featured (183)
Federal Firearms Laws (18)
Financing the Taliban (2)
Firearms (1,250)
Football (1)
Force Projection (35)
Force Protection (4)
Force Transformation (1)
Foreign Policy (27)
Fukushima Reactor Accident (6)
Ganjgal (1)
Garmsir (1)
general (15)
General Amos (1)
General James Mattis (1)
General McChrystal (43)
General McKiernan (6)
General Rodriguez (3)
General Suleimani (9)
Georgia (19)
GITMO (2)
Google (1)
Gulbuddin Hekmatyar (1)
Gun Control (1,274)
Guns (1,752)
Guns In National Parks (3)
Haditha Roundup (10)
Haiti (2)
HAMAS (7)
Haqqani Network (9)
Hate Mail (8)
Hekmatyar (1)
Heroism (4)
Hezbollah (12)
High Capacity Magazines (16)
High Value Targets (9)
Homecoming (1)
Homeland Security (1)
Horses (1)
Humor (29)
ICOS (1)
IEDs (7)
Immigration (92)
India (10)
Infantry (4)
Information Warfare (2)
Infrastructure (2)
Intelligence (23)
Intelligence Bulletin (6)
Iran (170)
Iraq (379)
Iraq SOFA (23)
Islamic Facism (64)
Islamists (95)
Israel (18)
Jaish al Mahdi (21)
Jalalabad (1)
Japan (2)
Jihadists (80)
John Nagl (5)
Joint Intelligence Centers (1)
JRTN (1)
Kabul (1)
Kajaki Dam (1)
Kamdesh (9)
Kandahar (12)
Karachi (7)
Kashmir (2)
Khost Province (1)
Khyber (11)
Knife Blogging (4)
Korea (4)
Korengal Valley (3)
Kunar Province (20)
Kurdistan (3)
Language in COIN (5)
Language in Statecraft (1)
Language Interpreters (2)
Lashkar-e-Taiba (2)
Law Enforcement (3)
Lawfare (7)
Leadership (6)
Lebanon (6)
Leon Panetta (2)
Let Them Fight (2)
Libya (14)
Lines of Effort (3)
Littoral Combat (8)
Logistics (50)
Long Guns (1)
Lt. Col. Allen West (2)
Marine Corps (263)
Marines in Bakwa (1)
Marines in Helmand (67)
Marjah (4)
MEDEVAC (2)
Media (56)
Medical (51)
Memorial Day (5)
Mexican Cartels (35)
Mexico (50)
Michael Yon (5)
Micromanaging the Military (7)
Middle East (1)
Military Blogging (26)
Military Contractors (4)
Military Equipment (24)
Militia (5)
Mitt Romney (3)
Monetary Policy (1)
Moqtada al Sadr (2)
Mosul (4)
Mountains (25)
MRAPs (1)
Mullah Baradar (1)
Mullah Fazlullah (1)
Mullah Omar (3)
Musa Qala (4)
Music (21)
Muslim Brotherhood (6)
Nation Building (2)
National Internet IDs (1)
National Rifle Association (72)
NATO (15)
Navy (22)
Navy Corpsman (1)
NCOs (3)
News (1)
NGOs (2)
Nicholas Schmidle (2)
Now Zad (19)
NSA (3)
NSA James L. Jones (6)
Nuclear (57)
Nuristan (8)
Obama Administration (221)
Offshore Balancing (1)
Operation Alljah (7)
Operation Khanjar (14)
Ossetia (7)
Pakistan (165)
Paktya Province (1)
Palestine (5)
Patriotism (7)
Patrolling (1)
Pech River Valley (11)
Personal (64)
Petraeus (14)
Pictures (1)
Piracy (13)
Pistol (2)
Pizzagate (21)
Police (503)
Police in COIN (3)
Policy (15)
Politics (833)
Poppy (2)
PPEs (1)
Prisons in Counterinsurgency (12)
Project Gunrunner (20)
PRTs (1)
Qatar (1)
Quadrennial Defense Review (2)
Quds Force (13)
Quetta Shura (1)
RAND (3)
Recommended Reading (14)
Refueling Tanker (1)
Religion (197)
Religion and Insurgency (19)
Reuters (1)
Rick Perry (4)
Rifles (1)
Roads (4)
Rolling Stone (1)
Ron Paul (1)
ROTC (1)
Rules of Engagement (75)
Rumsfeld (1)
Russia (30)
Sabbatical (1)
Sangin (1)
Saqlawiyah (1)
Satellite Patrols (2)
Saudi Arabia (4)
Scenes from Iraq (1)
Second Amendment (368)
Second Amendment Quick Hits (2)
Secretary Gates (9)
Sharia Law (3)
Shura Ittehad-ul-Mujahiden (1)
SIIC (2)
Sirajuddin Haqqani (1)
Small Wars (72)
Snipers (9)
Sniveling Lackeys (2)
Soft Power (4)
Somalia (8)
Sons of Afghanistan (1)
Sons of Iraq (2)
Special Forces (28)
Squad Rushes (1)
State Department (21)
Statistics (1)
Sunni Insurgency (10)
Support to Infantry Ratio (1)
Supreme Court (20)
Survival (39)
SWAT Raids (55)
Syria (38)
Tactical Drills (2)
Tactical Gear (6)
Taliban (167)
Taliban Massing of Forces (4)
Tarmiyah (1)
TBI (1)
Technology (17)
Tehrik-i-Taliban (78)
Terrain in Combat (1)
Terrorism (95)
Thanksgiving (10)
The Anbar Narrative (23)
The Art of War (5)
The Fallen (1)
The Long War (20)
The Surge (3)
The Wounded (13)
Thomas Barnett (1)
Transnational Insurgencies (5)
Tribes (5)
TSA (22)
TSA Ineptitude (13)
TTPs (3)
U.S. Border Patrol (5)
U.S. Border Security (14)
U.S. Sovereignty (17)
UAVs (2)
UBL (4)
Ukraine (3)
Uncategorized (56)
Universal Background Check (3)
Unrestricted Warfare (4)
USS Iwo Jima (2)
USS San Antonio (1)
Uzbekistan (1)
V-22 Osprey (4)
Veterans (3)
Vietnam (1)
War & Warfare (258)
War & Warfare (40)
War Movies (4)
War Reporting (21)
Wardak Province (1)
Warriors (6)
Waziristan (1)
Weapons and Tactics (70)
West Point (1)
Winter Operations (1)
Women in Combat (21)
WTF? (1)
Yemen (1)

November 2020
October 2020
September 2020
August 2020
July 2020
June 2020
May 2020
April 2020
March 2020
February 2020
January 2020
December 2019
November 2019
October 2019
September 2019
August 2019
July 2019
June 2019
May 2019
April 2019
March 2019
February 2019
January 2019
December 2018
November 2018
October 2018
September 2018
August 2018
July 2018
June 2018
May 2018
April 2018
March 2018
February 2018
January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006

about · archives · contact · register

Copyright © 2006-2020 Captain's Journal. All rights reserved.