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Old February 22, 2014, 10:34 AM   #176
esqappellate
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Correct, the State is not a party. IIRC, they did not even file as an amicus. A non party may not seek rehearing.
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Old February 22, 2014, 10:49 AM   #177
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As I understand it, only the parties to the case may file for rehearing/hearing en banc. CA was not a party to the case, as the plaintiffs did not challenge the statutory scheme of CA. Plaintiffs only challenges the Sheriffs interpretation of the "good cause" clause of the statute.

That being said, the Defendant has chosen not to file for rehearing.hearing en banc. So at this point, any Judge on the 9th may, sua sponte, call for en banc. They have until March 6th to make that call and must support that call with a memorandum of supporting points and authorities. "Upon receipt of a timely sua sponte en banc call, the author of the panel opinion or the Clerk of Court upon the request of the En Banc Coordinator shall ordinarily enter an order directing the parties to file simultaneous briefs within 21 days setting forth their respective positions on whether the matter should be reheard en banc. If the En Banc Coordinator orders that no supplemental briefing will be filed, the parties will be notified of the sua sponte en banc call."

http://cdn.ca9.uscourts.gov/datastor...rders11_11.pdf

If no call is made, the mandate will issue shortly after the 6th. Then the case is returned to the District Court, where the Judge there will have to issue the injunction against San Diego County.

Keep in mind that the Sheriff avoided saying he would not petition the SCOTUS for a grant of cert. That option is still open. Time for this is 90 days, starting on the 14th of Feb.
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Old February 22, 2014, 10:52 AM   #178
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Esqappellate, I see we have cross-posted. Thank you for that clarification.
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Old February 22, 2014, 11:30 AM   #179
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Al, you do a terrific job with this stuff.
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Old February 22, 2014, 02:40 PM   #180
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Not only is the State not a party, the majority opinion did not declare that the "may issue" state statute was unconstitutional, rather that the Sheriff's application of that statute was unconstitutional. This raises the issue in my mind as to whether the AG even has standing to assert error. I don't think she does (I am sure much to her chagrin.) The only way around this "dilemma" is to follow the lead of the dissenter, who wished to narrowly focus on whether it was unconstitutional for the State to have a "may issue" law (an issue in his mind that required participation of the State and might possibly require legislative changes). The majority brilliantly finessed this argument.

General primer on California carry law: It is generally legal to carry firearms outside of incorporated areas (cities and towns) wherever hunting is permitted. It is generally illegal to carry any firearm, loaded or unloaded, handgun or long gun, within any incorporated area, with exception for LEO, security guards, parades, immediate defense of self before the police arrive, and CCW (and a few miscellaneous exceptions of rare application). California enforces the 1000' exclusionary zone of the GFSZA, but CCW holders are exempt (unless their issuing agency imposes a schools property restriction). Notwithstanding Penal Code section 171b (allowing pocket knives shorter than 4" and nonparty CCW holders to carry in government buildings ) all courts I know of ban all "weapons." There is state pre-emption for most gun laws, except those regulating sales. Transport of firearms is the same as under FOPA--locked container other than glove box or center console, unloaded. There is no knife law pre-emption; and by way of example, it is legal under state law to carry a sword, but all blades longer than 3" are banned in LA. Fixed bladed knives must be carried openly.

Although called a "concealed carry weapons license" the license is for handguns only, and does not exempt a licensee from California's long list of prohibited dangerous weapons (nanchukas, switch blades, cane swords, blow guns, gravity knives, ballisongs, brass knuckles, belt buckle knives, etc.) First time applicants for a CCW must have 16 hours of training [there is a statutory provision for a 24 hour community college class, but no county imposes it], pass a background check, fill out a state mandated form, have "good cause" and "good moral character." (The latter may be the next battleground--an applicant in Ventura reports being denied for having too many traffic tickets.) There is an in person interview with the issuing agency (San Diego has started scheduling them at the rate of four per day--and is booked into August already). The application and fingerprinting runs around $150. The issuing agency may require a mental evaluation with a cost not to exceed $150. Renewals are every two years, and require a 4 hour class. Various SOs have imposed additional requirements, all of questionable legality, such as requiring $1m insurance naming the Sheriff as an additional insured, written indemnity agreements (even though the IA is statutorily immune from liability for issuing a license), letters of reference, etc. Some agencies will interview neighbors and business associates (which seems counter to the whole theory of concealed carry), others don't, relying instead on the state and NICS checks for priors. They will check your DMV record.

Last edited by 62coltnavy; February 22, 2014 at 03:24 PM.
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Old February 22, 2014, 03:07 PM   #181
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A police site analysis of the decision:

http://www.policeone.com/patrol-issu...e=newsAnalysis

I note the commentary of some chiefs who wanted a long and deliberate process - obviously as a deterrent to applications. There is little evidence to suggest that such was needed and it was obviously a cover to oppose issuing permits.
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Old February 22, 2014, 03:53 PM   #182
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"A police site analysis of the decision:"

Greg Suhr is a lying sack of [expletive deleted.] As of the end of 2103, there were exactly 4 CCWs issued for the City and County of SF out of a population of 825,000, one by the Sheriff, and one by Suhr, and two by other police agencies for reserve officers working in the city. The two to "civilian employees" were one each of the sheriff's office and the SFPD, respectively. One of the latter was undoubtedly issued by Suhr to SF Sheriff Mirikami who, not being a LEO, could not legally carry a firearm in the city. (Source: CalGuns Foundation 2013 Carry License Statistics.) In a recent interview, Suhr said that there should be a subjective evaluation of applicants based on objective standards. (Not sure what he meant by that.) He has stated on several occasions that he does not want citizens carrying firearms in "his" city, as he considers armed civilians to be a threat to police officers.

Cal law does allow for a mental exam--optionally--but in SF it is mandatory. SF has tried to require applicants to pass a shooting qualification judged by the same standards as imposed on SFPD, to be taken at the SFPD range, and monitored by a SFPD range officer--with all costs, including range rental and the salary of the RO to be paid by the applicant. I seem to recall that the City also sought to limit the guns applicants would be allowed to carry to those allowed to be carried by SFPD (.38 revolver or 9 mm pistol, maybe a .40, but no .45). When these requirements were challenged by CalGuns as illegal under the state statute as in excess of the maximum fees and requirements proscribed, SFPD took down the requirements from its web site, but it is unclear if they are still imposed.

[By contrast, in rural counties, an applicant can usually take the class first, walk in the application to the SO, get an interview that week or the next, and as long as the interview goes well and the background check is clean, will receive a license in a matter of weeks.]

From the article, it is obvious that Suhr will do everything in his power to discourage as many people from even applying as possible, and make the process as long and as arduous as possible. I suspect that there will be lawsuits in his future.
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Old February 22, 2014, 04:11 PM   #183
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Quote:
Originally Posted by 62coltnavy
Greg Suhr is a lying sack of [expletive deleted.] As of the end of 2103, there were exactly 4 CCWs issued for the City and County of SF out of a population of 825,000, one by the Sheriff, and one by Suhr, and two by other police agencies for reserve officers working in the city. The two to "civilian employees" were one each of the sheriff's office and the SFPD, respectively....
I was wondering it someone would pick up on that nonsense. San Francisco is notorious for not issuing CCWs.
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Old February 22, 2014, 04:19 PM   #184
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Quote:
Frank Ettin said:I was wondering it someone would pick up on that nonsense.
You're kidding right? Seriously???? I think anyone here from S.F., Alameda, L.A., O.C., and S.D. counties just to name a few smelled that load of Bandini as soon as they opened it.

Edit to add: L.A. with 341 permits issued with a pop. of ~10M is pretty darned close.
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Old February 22, 2014, 05:04 PM   #185
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For Al and esqappellate -
Quote:
How can she? CA isn't a party to this lawsuit. Wouldn't it be like an amicus calling for an en banc?
Isn't a county or city a political subdivision of the State? When one of the local PD's around here was getting hammered with multiple accusations of racism, police brutality and such they were concerned they'd lose their autonomy and be taken over in some way by the State or Feds. If that's possible with a big city police force, couldn't the State AG be able exert the same influence over the Sheriff's Office, Requesting en banc on behalf of the Sheriff, representing the Sheriff's office, or as the "parent company" of the Sheriff's office etc. however that works.
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Old February 22, 2014, 05:18 PM   #186
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Sure, a county is a political subdivision of the state, established by state law and subject to the laws of the state. The legislature basically can do anything to a county. But, the county and sheriff were sued by name here and I know of legal basis for the AG or the State to step into the shoes and "become" the County or the Sheriff. There is no parens patriae here. And the AG is not a party and the state is not a party. Neither can become a party without intervening as a party and it is more than a little late for that. Bear in mind that the panel did not invalidate a state law, it invalidated a county interpretation and application of state law.
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Old February 22, 2014, 08:50 PM   #187
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Now let's add a couple of twists to the equation. PEruta was no the only case pending in the ninth. In fact, O'Scanlain has two other cases pending that were argued the same day, one a case from Hawaii and one called Richards v. Prieto, which not only challenged may issue but the morals qualification too. We are still waiting for those decisions. Richards, to be sure, is a Yolo county case, and Yolo being pretty rural, will not likely seek further review even (though they've fought this from the start.
Also waiting not too far back in the wings are two cases filed by Attorney Jonathon (think that's right) Byrd, one in pro per, against Los Angeles County probably both the city and the county, but it's been a while). Byrd actually did discovery before filing his motion for summary judgment, and has testimony by the powers that be that they denied permits because "more guns equals more crime" (really), a proposition for which none had any evidence. Although Sheriff Baca is in his last days in office--chased out by too many scandals--the Chief of Police for LAPD, Charlie Beck, is more than likely chomping at the bit to take this case up to the Supreme Court. But after Sheriff Gore caved, it would seem that taking appeal has become more of a political question than a legal one. I would love to know who is pulling the strings and what they have to say. [Maybe out friends at NSA can clue us in.](snark)
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Old February 22, 2014, 11:13 PM   #188
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Yolo County may be "rural" but they are politically and economically dominated by Davis which in turn is dominated by UC-Davis - basically they are the "Berkeley" of the rural counties.

The lawsuit now going on against Yolo originally included Sacramento County as a defendant, but they folded their cards and went fully shall-issue rather than face questions about crap like this:

http://www.ninehundred.net/~equalccw...escopapers.pdf

...or worse, the secret police known as the "Sheriff's Posse" that are run out of a private law office, contain roughly half the reserve officers, whose names are NOT known to the sheriff's reserve division staff and who are top-heavy with political contributors and CCW holders.

All my research on that stuff was fully turned over to SAF/CCRKBA before I left CCRKBA's employment in mid-2005 and I strongly suspect it factored into SacSheriff folding like a wet noodle once Alan Gura came a knockin'.
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Old February 23, 2014, 03:47 PM   #189
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Quote:
Originally Posted by 62coltnavy
. . . . California enforces the 1000' exclusionary zone of the GFSZA, but CCW holders are exempt (unless their issuing agency imposes a schools property restriction). . . .
Does this mean that 1 CCL holder is exempt from the 1000' exclusionary zone, but another might not be, based on which agencies issued their CCLs? Am I reading that right?
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Old February 23, 2014, 04:13 PM   #190
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Quote:
Originally Posted by Spats McGee
Quote:
Originally Posted by 62coltnavy
. . . . California enforces the 1000' exclusionary zone of the GFSZA, but CCW holders are exempt (unless their issuing agency imposes a schools property restriction). . . .
Does this mean that 1 CCL holder is exempt from the 1000' exclusionary zone, but another might not be, based on which agencies issued their CCLs? Am I reading that right?
I'm afraid you are.

Some agencies issuing CCLs in California will append an issued CCL with specific or unique restrictions. This is something else which will most likely warrant some judicial challenges in the future.
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Old February 23, 2014, 06:08 PM   #191
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And in the urban / suburban areas, guess how many places are NOT within 1000' feet of a school?
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Old February 23, 2014, 06:19 PM   #192
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Backing up a bit, I concur with those stating the California Attorney General cannot ask for an en banc rehearing per the reasons 62coltnavy stated. First, I don't think the AG has standing and then, to try to intervene after a decision is reached, is "a day late and a dollar short."
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Old February 24, 2014, 09:18 AM   #193
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I stand corrected.
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Old February 27, 2014, 12:55 AM   #194
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I just thought I'd update this.

From the SDSD:
Quote:
Members of the public wishing to obtain a CCW under the standards articulated by the Ninth Circuit should be aware that the decision has not yet become final.

Federal court rules prescribe a period of time which must elapse before the case is remanded to the District Court for further proceedings.

In order to accommodate, and expedite, the large numbers of anticipated applications, the Sheriff’s Department is revising the process for issuing CCW permits. Anyone wanting to apply for a CCW may submit an application either by mail at P.O. Box 939062, San Diego CA 92193-9062, or in person at 9621 Ridgehaven Court, San Diego, CA 92123.

Applications will be reviewed in the order they are received. All applications received that meet the current “good cause” standard will be contacted by a licensing staff member with instructions on how to complete the process.

Applications that seek a CCW permit under the self-defense standard set forth in Peruta v. County of San Diego will be processed in the order they were received should the decision of the Ninth Circuit become final. Once the decision becomes final, applicants will be contacted by the Sheriff’s Licensing Division with instructions on how to complete the process.

Please disregard the “Important Instructions” on page two of the State application and complete all sections of the application. Also, please do not submit fees at this time.
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Old February 27, 2014, 08:40 PM   #195
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Kamala Harris files a petition for an en banc hearing.
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Old February 27, 2014, 09:17 PM   #196
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And the CPOA has also submitted a request that 9th review Peruta - https://www.dropbox.com/s/9eyocu0pc2rczhs/Document.pdf

The non-appellate lawyer group, including me, seems to believe neither CPOA nor the Attorney General has standing to make such an appeal, but it may be that the submissions might influence one of the judges at 9th to generate a sua sponte request for review.
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Old February 27, 2014, 09:55 PM   #197
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I don't think they have standing, either.
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Old February 27, 2014, 10:23 PM   #198
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So, since the court has been petitioned for an en banc review, what happens now?
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Old February 27, 2014, 10:49 PM   #199
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Correct me if I'm wrong, but doesn't the request for an en banc hearing have to come from a judge on that Circuit?
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Old February 27, 2014, 11:17 PM   #200
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To clear up a few things, the State of California petitioned to intervene, a patent admission that the AG has no standing if that petition is denied. I kind of think, having read it, that it will be granted. The essential argument, which follows the dissenting opinion, is tat the ruling upsets the CCW applecart by making the state essential "shall issue" (even though the decision does not hold that the statute is unconstitutional, only its application as requiring a showing other than the exercise of the right--and the statute does not define "good cause," rather it allows each sheriff to decide for him/herself what s/he considers to be good cause).
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