The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old March 6, 2014, 02:33 PM   #251
Dreaming100Straight
Senior Member
 
Join Date: February 3, 2013
Posts: 534
Quote:
Quote:
Quote:
Originally Posted by JimDandy
What are the chances that Gore throws Harris under the bus for not getting involved in the first place, opposing her attempt to intervene after he surrendered?
How would he do this?
By documenting what the AGO knew about the proceedings and the challenges to Cali law and what it said regarding declining to participate. Court could request this info or Peruta could get it and supply supporting declaration through counsel.
Dreaming100Straight is offline  
Old March 7, 2014, 09:50 AM   #252
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 545
9th Circuit Website for Peruta

The 9th has set up a website with all the documents related to Peruta, and encourages readers to "come back for updates". In red, that sign is posted.

I dunno how often a circuit will do this, but it should make data access very easy and more open. Which cannot hurt.

Almost like someone was thinking about doing something unusual...



http://www.ca9.uscourts.gov/content/..._id=0000000722
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain
HarrySchell is offline  
Old March 7, 2014, 07:28 PM   #253
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 545
This is a more complete and up to date list of the briefs and status on Peruta, maintained by counsel for Peruta et. al. Wiser heads on CalGuns corrected me.

Still think it interesting that the 9th is putting up their own page, but wiser minds may know this is not significant after all.

http://michellawyers.com/guncasetrac...rutavsandiego/
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain

Last edited by Brian Pfleuger; March 7, 2014 at 09:03 PM. Reason: link correction
HarrySchell is offline  
Old March 10, 2014, 11:21 AM   #254
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 545
Date has passed for a judge on the 9th to ask for en banc, but I doubt it means anything due to the pending briefs asking for it. April 2 (or about) is the next marker.
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain
HarrySchell is offline  
Old March 10, 2014, 11:54 AM   #255
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,068
HarrySchell,

The granting of time to consider the motions extended the sue sponte deadline 7 days.
maestro pistolero is offline  
Old March 10, 2014, 12:02 PM   #256
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 377
Do we know for sure that none of the judges called for an en banc hearing?

I remember in Moore it took some time even to find out.
Luger_carbine is offline  
Old March 10, 2014, 02:57 PM   #257
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 545
Maestro, I figure they have until replies to the briefs for intervention and en banc are filed, evaluated and the briefs denied or accepted, which runs the timeline out to April 2, or would it be April 9?

I have seen nothing that confirms/denies a judge is pushing for en banc. March 6 has passed without a judge saying something, but I am not sure it matters at all.
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain
HarrySchell is offline  
Old March 27, 2014, 01:23 AM   #258
Librarian
Senior Member
 
Join Date: June 4, 2007
Location: Concord, CA
Posts: 132
Appellant's opposition available - http://michellawyers.com/wp-content/...California.pdf

Have not yet seen the Attorney General's arguments on why she should be allowed to intervene.

ETA - I may have misunderstood the order; apparently AG need not have provided anything for 3/26, but Sheriff Gore was directed to respond
Quote:
Each party is each directed to file a response
in the 3/5 order, and did not.
__________________
See the CALGUNS FOUNDATION Wiki for discussion of California firearms law.

The FAQ page is here.

Last edited by Librarian; March 27, 2014 at 03:57 PM.
Librarian is offline  
Old March 27, 2014, 02:34 AM   #259
Dreaming100Straight
Senior Member
 
Join Date: February 3, 2013
Posts: 534
Those arguments are in the motion for intervention filed along with the petition on Feb 27. I believe what was filed as a petition is being treated as a proposed petition, but it will not be filed a petition unless intervention is first granted. If intervention is granted, I believe the order will provide for the filing of a Petition. I suppose it could order the proposed petition filed or give the AG so many days to file a petition.
Dreaming100Straight is offline  
Old March 28, 2014, 12:26 AM   #260
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 206
Couple of things. First, although the parties were directed to file responses to the intervention motions by a specified date, that order was directory, not mandatory, i.e., setting a filing deadline for filing. So Gore did not have to file anything, and there is no penalty because he "failed" to do so.

Second, Appellants take what I thought was an unusual approach. They opposed the motions by Brady Campaign and CPOA on the basis of lack of standing, and I rather suspect that the Court will agree.

However, the opposition to the AG's motion was a surprise. After arguing that the AG has no statutory right to intervene, Appellants conceded that the court nonetheless has discretionary authority under the rule to grant the motion. Appellants expressly stated that they did not oppose the court's exercise of discretion to grant the motion to intervene. This is kind of strange at first take, because there are plenty of good factual reasons that could be argued against granting the motion, specifically the fact that the AG has on numerous occasions declined to voluntarily participate, or has filed motions to dismiss in cases that sought to add the AG as a party.

So why did Appellants/NRA roll over on a motion that there was a good chance they would win? Some have suggested that it was to show "respect" to the court, and bow to the inevitable. I think that is nonsense. Instead I think that a strategic decision was made to allow the en banc petition to go forward in that petitions have been filed in the companion Richards v. Prieto companion case. Appellants did not want to take the risk that the Richards petition would be granted, but that because of the denial of the motion to intervene, they would not have a place at the table. And this is especially so given the long standing animosity between the NRA/Mitchell faction (Peruta) and the CalGuns/SAF/Gura (Richards) faction, plus the great potential that these cases will find their way to the Supreme Court cert docket.
62coltnavy is offline  
Old March 28, 2014, 01:18 AM   #261
Librarian
Senior Member
 
Join Date: June 4, 2007
Location: Concord, CA
Posts: 132
The order was, in relevant part,
Quote:
Each party is each directed to file a response of no more than 6,000 words
addressing the pending motions to intervene filed with this Court on February 27,
2014.
...
The responses shall be filed within 21 days of this order
Quote:
Couple of things. First, although the parties were directed to file responses to the intervention motions by a specified date, that order was directory, not mandatory, i.e., setting a filing deadline for filing. So Gore did not have to file anything, and there is no penalty because he "failed" to do so.
Can't speak to 'penalty', but I would like to read your distinction between 'directory' and 'mandatory' related to an order issued by 9th Circuit, especially discussing the Court's use of "shall" in the 21 days sentence.
__________________
See the CALGUNS FOUNDATION Wiki for discussion of California firearms law.

The FAQ page is here.
Librarian is offline  
Old March 28, 2014, 12:46 PM   #262
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 545
Quote:
After arguing that the AG has no statutory right to intervene, Appellants conceded that the court nonetheless has discretionary authority under the rule to grant the motion.
This is the question I asked...does the Court actually have the discretion to let the AG intervene? Especially in light of the arguments against such intervention.

The other question is if the Court is bound to make a decision within a certain time. Seen some comments that they usually have to opine within a week, some have said three weeks.

Thanks in advance.
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain
HarrySchell is offline  
Old March 28, 2014, 01:27 PM   #263
speedrrracer
Senior Member
 
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 259
Quote:
Originally Posted by HarrySchell
This is the question I asked...does the Court actually have the discretion to let the AG intervene? Especially in light of the arguments against such intervention.

The other question is if the Court is bound to make a decision within a certain time. Seen some comments that they usually have to opine within a week, some have said three weeks.
For question #1, yes, the Court has FRCP 24(a)(2) and 24(b).

For #2, no one has been able to show me anything which suggests the court is bound to some deadline.
speedrrracer is offline  
Old March 28, 2014, 04:52 PM   #264
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 545
Thanks very much, Speedrrracer.
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain
HarrySchell is offline  
Old March 28, 2014, 10:12 PM   #265
Dreaming100Straight
Senior Member
 
Join Date: February 3, 2013
Posts: 534
The court does NOT have discretion to permit the AG to intervene under FRCP 24(a)(2). Intervention under 24(a)(2) is MANDATORY, not discretionary.
Dreaming100Straight is offline  
Old March 31, 2014, 12:13 AM   #266
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 206
"Intervention under 24(a)(2) is MANDATORY, not discretionary."

Yes, but only if here is a statute that allows intervention. The AG relies on a statute that applies only if there is no representative of the state who is a party to the action--and Gore, for the purposes of issuing licenses is a state actor. Hence, the elements of mandatory intervention are not present. However, even when mandatory intervention is not appropriate, and as Peruta argues, the court in its discretion may nonetheless allow a new party to intervene, which in this case may have been more probable given the fact that Gore has stated that he will not further pursue the case.

Peruta's argument may be found here http://www.ca9.uscourts.gov/content/...id=0000000722:
62coltnavy is offline  
Old March 31, 2014, 12:17 AM   #267
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 206
"Can't speak to 'penalty', but I would like to read your distinction between 'directory' and 'mandatory' related to an order issued by 9th Circuit, especially discussing the Court's use of "shall" in the 21 days sentence."

All briefing is "discretionary." No party can be "required" to file any brief, and a failure to file is a waiver of the right to do so. Gore waived his right. End of story.
The "shall" had to do with when that brief, should a party have elected to prepare one, had to be on file. Example: the court orders a party to file a brief/motion/answer by a date specified. The party elects not to file. This is not a contempt, but subjects the party to a default. Same here. Gore has elected not to file a brief, and has thus waived his right to do so.

Last edited by 62coltnavy; March 31, 2014 at 12:40 AM.
62coltnavy is offline  
Old March 31, 2014, 03:30 PM   #268
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 1,866
The fact the ruling has been put on hold so they can work through AG and others intervining proses . Does this extend the time the judges on the 9th have to call for an en-banc or has there dead line past to do so ?
__________________
If you have a problem with everybody .

It's not everybody that has the problem
Metal god is offline  
Old March 31, 2014, 04:19 PM   #269
Librarian
Senior Member
 
Join Date: June 4, 2007
Location: Concord, CA
Posts: 132
It appears that the Court's time to call for en banc sua sponte may be extended.

But, absent something from the Court, we don't really know.

I ran across this yesterday - http://www.ca9.uscourts.gov/content/faq.php
Quote:
17. How long does it take from the time of the notice of appeal until oral argument?

For a civil appeal, approximately 12-20 months from the notice of appeal date. If briefing isn't delayed, approximately 9-12 months from completion of briefing.

For a criminal appeal, approximately 4-5 months after briefing is complete.


18. How long does it take from the time of argument to the time of decision?

The Court has no time limit, but most cases are decided within 3 months to a year.


19. How long does it take to decide a petition for panel rehearing or petition for rehearing en banc?

The Court has no time limit. A decision on a petition for rehearing en banc may take a few months.
Right now, we're at the 'will the Court allow a petition to rehear en banc?' stage. Based on the Appellant's brief, the guess seems to be 'yes, the Court will allow it'.
__________________
See the CALGUNS FOUNDATION Wiki for discussion of California firearms law.

The FAQ page is here.
Librarian is offline  
Old April 1, 2014, 01:59 PM   #270
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 545
I suppose I am answering my own question but will the 9th maintain the stay if they decide for en banc, with the other decisions and CA counties adopting Peruta rules? I would guess so.
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain
HarrySchell is offline  
Old April 1, 2014, 04:33 PM   #271
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,298
As it maintains the status quo, yes, the stay will be held, should they go en banc.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old April 2, 2014, 09:38 PM   #272
speedrrracer
Senior Member
 
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 259
Kamala's reply, which came today. Thanks to Librarian

http://michellawyers.com/wp-content/...California.pdf

Quote:
I. The Court Should Grant the State’s Unopposed Motion to Intervene Under Rule 24(a)(2) and (b)

Ii. Should the Court Reach the Issue, it Should Grant the State’s Motion to Intervene Under Rule 24(a)(1)
speedrrracer is offline  
Old April 2, 2014, 11:45 PM   #273
Metal god
Senior Member
 
Join Date: April 10, 2012
Location: San Diego CA
Posts: 1,866
Right about now I'm wishing Peruta never said they're ok with the AG intervening . She makes a good argument and I hope the court lets Peruta reply to there AGs reply . ( why does she get to reply I might ask ) now Peruta needs to point out each and every time the AG has refused to be apart of a lawsuit that was similar and why she felt no need to be apart of those .
__________________
If you have a problem with everybody .

It's not everybody that has the problem
Metal god is offline  
Old April 2, 2014, 11:45 PM   #274
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 206
I don't agree with the State's characterization of the Appellant's response, nor do I see this as a case where the constitutionality of a state statute is at issue. As to the latter, the Peruta opinion goes to great pains to explain that the constitutionality of the statute is not at issue, only its interpretation and application by Sheriff Gore. In fact, in most of the urban counties and in Sacramento, the sheriffs are virtual "shall issue', accepting self-defense as "good cause." Is Harris trying to force these sheriffs---should she prevail en banc--to return to a standard of "heightened" need in order to issue--as a matter of constitutional interpretation? Hmm.

The best thing that can happen right now is for the motion to intervene to be granted (likely) and the motion for en banc to be denied, paving the way for a cert petition, hopefully in time for the Supremes to do a "grant and hold" on Drake. The worst thing that could happen would be a reversal by an en banc panel. Since such panels are chosen randomly (except for the Chief Justice), there is a definite risk that that could occur--and Peruta would be in a weak position on any cert petition because the split would have disappeared.
62coltnavy is offline  
Old April 3, 2014, 06:18 AM   #275
press1280
Senior Member
 
Join Date: May 17, 2012
Posts: 211
The one thing that the state brings up correctly is that the statute was meant to give unlimited authority to the sheriffs to interpret "good cause". That has now changed. The statute, while it can of course be interpreted to self defense(w/no further explanation)=good cause, wasn't meant to mean exactly that in all cases.
press1280 is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 11:57 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.17521 seconds with 10 queries