March 6, 2014, 02:33 PM | #251 | ||
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March 7, 2014, 09:50 AM | #252 |
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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
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March 7, 2014, 07:28 PM | #253 |
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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/
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March 10, 2014, 11:21 AM | #254 |
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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.
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March 10, 2014, 11:54 AM | #255 |
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HarrySchell,
The granting of time to consider the motions extended the sue sponte deadline 7 days. |
March 10, 2014, 12:02 PM | #256 |
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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. |
March 10, 2014, 02:57 PM | #257 |
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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.
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March 27, 2014, 01:23 AM | #258 | |
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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:
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March 27, 2014, 02:34 AM | #259 |
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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.
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March 28, 2014, 12:26 AM | #260 |
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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. |
March 28, 2014, 01:18 AM | #261 | ||
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The order was, in relevant part,
Quote:
Quote:
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March 28, 2014, 12:46 PM | #262 | |
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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.
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March 28, 2014, 01:27 PM | #263 | |
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For #2, no one has been able to show me anything which suggests the court is bound to some deadline. |
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March 28, 2014, 04:52 PM | #264 |
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Thanks very much, Speedrrracer.
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March 28, 2014, 10:12 PM | #265 |
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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.
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March 31, 2014, 12:13 AM | #266 |
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"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: |
March 31, 2014, 12:17 AM | #267 |
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"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. |
March 31, 2014, 03:30 PM | #268 |
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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 ?
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March 31, 2014, 04:19 PM | #269 | |
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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:
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April 1, 2014, 01:59 PM | #270 |
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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.
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April 1, 2014, 04:33 PM | #271 |
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As it maintains the status quo, yes, the stay will be held, should they go en banc.
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April 2, 2014, 09:38 PM | #272 | |
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Kamala's reply, which came today. Thanks to Librarian
http://michellawyers.com/wp-content/...California.pdf Quote:
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April 2, 2014, 11:45 PM | #273 |
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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 .
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April 2, 2014, 11:45 PM | #274 |
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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. |
April 3, 2014, 06:18 AM | #275 |
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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.
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