Peruta v. San Diego

[Librarian]

So, since the court has been petitioned for an en banc review, what happens now?

We wait to see if any of the judges exercise their sua sponte ability to request review.

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?

It does now. San Diego had until today to file for an appeal. (It isn't midnight yet, so I'm not completely sure they will not, but Sheriff Gore announced he would not do so.)

Any judge of the 9th has until March 6 to make his/her request.

San Diego still has 90 days from Feb 13 to petition the Supreme Court for certiorari - nobody said they would not do that.

Ah, good - the version linked here by 62coltnavy has the whole thing - others I have downloaded are a couple pages short.

CA AG says

Finally, the Court should exercise its equitable discretion to permit the
State to intervene under Rule 24(b) because this case presents issues of
exceptional importance to the State that existing parties cannot or will not
adequately protect. Accordingly, the Court should permit the State to
intervene.

She wants the court to use

(b) Permissive Intervention.

(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.

(2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:

(A) a statute or executive order administered by the officer or agency; or

(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.

(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

http://www.law.cornell.edu/rules/frcp/rule_24

I'm not competent to evaluate her claim.

We'll see; I can't predict what the 9th will do.

[Brian Pfleuger]

San Diego still has 90 days from Feb 13 to petition the Supreme Court for certiorari - nobody said they would not do that.

I've come to the conclusion that the gun control lobby has transitioned to delay mode. They believe they are likely to lose many/most of these cases and when they do they take the route that creates the longest delay. When they can delay no further they will simply make a minor change in the law and reset the game.

One of the weaknesses of our system, I think, is that it is not well equipped to deal with those who intentionally exploit the process. The court system works just fine for a law that was "accidentally" unconstitutional. When the writers, AG's, .gov, etc are intentionally violating principles, their "losing" doesn't really hurt much. A minor revision and they're right back in it, while we wait 1, 2... 5 ... years for another legal "victory".

[62coltnavy]

To answer Tom's question, a justice of the circuit CAN request en banc review-as can any losing party. The request is then voted on by the entire bench, and requires a majority vote for review to be granted. If granted, a panel of 10randomly selected justices plus the presiding justice of the circuit (in this case Pro-2A Justice Alex Kosinski) hear the case. I am pretty sure that this is a "de novo" review, not a review for error in the original opinion, meaning that the panel considers the matter anew. If the petition for review is denied, then the original opinion stands.

As an aside, AG Harris has also requested a stay so that the current "good cause" standard will remain in effect until finality, a request predicated on the number of sheriffs who have announced that they will comply with the decision. (Los Angeles is not one of those counties, nor is San Francisco.)

In her petition for en banc review, she argues a number of things, for example, that the panel was wrong in concluding that there is a virtual carry ban in San Diego--and , without mentioning the City of San Diego itself, argues that most of the unincorporated areas of the county (other than those appurtenant to population areas) are open carry. I assume that this is the basis for her off hand comment that the "good cause" provision I(requiring that one show a need greater than the public at large) is a "modest" limitation on the right to carry.

[Librarian]

In her petition for en banc review, she argues a number of things, for example, that the panel was wrong in concluding that there is a virtual carry ban in San Diego--and , without mentioning the City of San Diego itself, argues that most of the unincorporated areas of the county

Yeah, she argues the dissent should have prevailed.

[Metal god]

I've lived in San Diego for half a century and except for the very rural parts you can not open carry . Even if there is no law saying you can't open carry , go ahead and try !! You will bring a world of hurt down upon you . There are very few places anymore that are not urban areas . Heck even Alpine is all track homes and Starbucks now . I remember heading up into Alpine to go shoot years ago . NOT no more ! Sounds like the AG is using the moutain areas as if they are populated and people are all about open carry out there . Sure mabe on private land and BLM land .

[Jim March]

My understanding from reading threads on Calguns from people who are usually right on this stuff is that Harris' request will go to the same three-judge panel of the 9th that ruled on Peruta and will die there. HOWEVER, it may be influencial to whichever one of the 27 9th Circus judges who might already have been inclined to do the en banc request, so in that sense Harris' document will have weight (more in "PR terms" than actual legal terms).

BUT, our side seems to have caught a break because the US Supreme Court should decide whether to hear Drake from NJ before the wrangling over en banc is done in the 9th. And if the Supremes are going to decide Drake, everything going on in Peruta from now forward is more or less moot.

Not...entirely though. If the Supremes agree to hear Drake, maybe a coalition of grabber-minded 9th Circuit judges might want to push a fast en banc overturn of Peruta so as to influence the Supremes in Drake somewhat. Maybe.

If the Supremes turn Drake down for review and Peruta doesn't make it to the Supremes, then the next possible chances for a carry case out of the Supremes could be years off: an appeal coming up from the 1st Circuit on the Massachussets may-issue system or an appeal in the DC circuit on the DC total carry ban. And by then we could lose one of the "Heller 5".

We really, really need Drake.

[62coltnavy]

My guess is that Drake will be held until Peruta runs its course.
1.If en banc is granted, then Drake may get dropped because the Supremes want a final decision from the ninth before they act.
2. If en banc is denied, then there are two possible outcomes:
(a) AG Harris will refile her motion to intervene and a petition for cert in the Supreme Court, in which case Drake will be hold as an "add on" to Peruta as the lead case (or vice versa), or
(b)If Harris does not seek Supreme Court review, then there is a good chance that Drake will be taken up on its own to address the split.

Then there are the follow on cases, of which there are four pending in the Ninth Circuit from California and one from Hawaii. All but one of these cases (an open carry case) have been briefed and argued and are awaiting decision. One of the California cases and the Hawaii case were argued to the same panel that decided Peruta, and I suspect that the decisions in those cases are being held up until Peruta runs its course in the Ninth Circuit.

[Al Norris]

While there are certainly other options to this mess, those outlined by 62coltnavy are probably the routes this case will take.

Somebody correct me if I'm wrong, but I seem to recall that Judge Thomas (the dissenting Judge) can not make the call for en banc. Such a call must come from a Judge that was not on the panel.

[zeeke42]

I think you're incorrect. The general orders here: http://cdn.ca9.uscourts.gov/datastor...#_Toc280777284 say that any judge can do it.

[Jim March]

Right, but the decision on whether or not to hear Drake will come up much sooner than the wrangling in Peruta will end. Right? If I recall right, Drake is being decided on whether or not to grant cert by The Supremes today and we'll get the news Monday?

Regardless of what happens in Peruta the issues are fully fleshed out on both sides. The Supremes need to hear Drake because if they don't there's no other carry cases from a new circuit available for years.

[KyJim]

I still don’t see standing for AG Harris to intervene. The Day¹ case she cites in support is readily distinguishable. The original defendant was a state agency which declined to adopt a particular argument the "state of Hawaii" (by its Solicitor General) proposed to the effect that individual Native Hawaiians did not have individual standing to complain about lands held in trust for their benefit by the state of Hawaii. Pertua is an "as applied" constitutional challenge which does not strike down the statute nor even strike down the "for good cause" requirement. It simply takes away unfettered discretion of local officials.

Looking at Rule 24 (see post 201), the AG does not administer or regulate concealed carry permits. Nor does it involve a state regulation under the statute. There may also be questions about timeliness if they are disputing facts regarding how widespread carry of some type is available in San Diego County. I'm not familiar enough with the case to know if he facts were adequately developed or not.

Of course, I could be wrong or the 9th Circuit may even get it wrong. The U.S. Supreme Court had to give the 9th Circuit a lesson in first year Civil Procedure (personal jurisdiction) this week in Walden v. Fiore.

¹Day v. Apoliona, 505 F.3d 963, 964 (9th Cir. 2007).

[zeeke42]

The response brief in Drake isn't due until 3/14 and then SAF gets to reply within 10 days of that. That puts Drake on schedule to be heard at the April 18th conference, if nothing changes.

[speedrrracer]

A statement from Chuck Michel, pretty much summing it all up:

http://www.calgunlaws.com/statement-...e-association/

[62coltnavy]

I thought Drake was coming up too, but someone corrected me and said that it probably won't make conference until late April. What's coming up next week is the filing of opposition to the petition for cert. so it has a ways to go. further, the court can, and has, held cases for long periods of time while waiting for the case it wants to hear to be concluded. thus I think it is likely, at this point anyway, that action on drake will be deferred.

[62coltnavy]

I agree with Michel on the standing issue--and suspect that her prior arguments will bite her in the butt. Only the dissenting justice thinks that she should have involved herself.

The "other" case the Michel does not name is Richards v. Prieto that was argued the same day as Peruta, but which was filed by CalGuns. The attorneys for the NRA and the attorneys for CalGuns have been at war over these competing cases from day one--and that pssing match as to who is "responsible" for what continues even after Peruta was decided. Reminds me of why I lurk at CalGuns but have never joined.

[62coltnavy]

Here's an update. ALSO filing requests for intervention are the Brady Campaign and the California Police Chiefs Association/California Peace Officers Association (who contend that the guidelines issued by the court are ambiguous/unclear/etc). The Brady Campaign contends it has "standing' to protect the interests of the residents of San Diego who will be threatened is more concealed carry permits are issued by the Sheriff. Multiple declarations accompany the motion, all claiming that these folks are fearful of concealed weapons as the carrying of weapons exposes them to heightened risk of gun violence. Her is a link where the various filings can be found.
http://www.ca9.uscourts.gov/content/..._id=0000000722

What is interesting is that most chiefs do not issue CCWs in California unless authorized by the sheriff of their county. Even more remarkably, the California Sheriffs Association DECLINED to join in the application for leave to intervene. As Sheriff Gore said in his public release, the decision contains clear guidelines for issuance of CCWs....which I think says it all.

[maestro pistolero]

The Brady Campaign contends it has "standing' to protect the interests of the residents of San Diego who will be threatened is more concealed carry permits are issued by the Sheriff.

. . . which notion cannot possibly be substantiated with ANY credible data that I have seen, and I have been looking for 10 years.

The opposite would be far more true. Taken as a group, CCW permit holders are so law abiding that their crime rate, if somehow superimposed onto the rest of the citizens, would make our violent crime rate look a lot like Switzerland. (Where, by the way, most households keep a REAL assault weapon, and a cache of ammo).

But the 'blood running in the streets' argument is the best Kamala's got. It matters not one bit that it's demonstrably false. There is no way on earth she can prove: " . . . the carrying of weapons (by licensed, screened and trained individuals) exposes (the public) to heightened risk of gun violence"

I think the antis feel the noose of Heller and McDonald just starting to tighten. And I don't think they fully expected an adverse decision out of the 9th. That's why we are seeing the missteps, the careless, vapid reasoning, and the strategic errors, such as declining to be a party in the first place.

[JimDandy]

Pertua is an "as applied" constitutional challenge which does not strike down the statute nor even strike down the "for good cause" requirement. It simply takes away unfettered discretion of local officials.

Nor does it involve a state regulation under the statute.

Here's where I get lost. Doesn't the statute say something about a person's good cause being able to distinguish themselves from the general populace, which is how they decided unspecific/generic/precautionary self defense wasn't good enough in the first place?

Taken as a group, CCW permit holders are so law abiding that their crime rate, if somehow superimposed onto the rest of the citizens, would make our violent crime rate look a lot like Switzerland

I'm not sure you can say that about CCW Permit holders yet. There's only one study on that so far that I've ever heard of, limited to the residents of Texas. What you can say (and be fair) is that "a study shows" or "When Texas studied it CCW holders were 7.7 times LESS likely to commit any crime that would cost them their CCW, and even then that crime was drunk driving." or whatever the statistic was. It's been a while since I browsed the Sturdevant study. And still it's only one study, and to "prove" something like this you'd want to be able to cite multiple studies from multiple locations.

[wayneinFL]

I'm not sure you can say that about CCW Permit holders yet. There's only one study on that so far that I've ever heard of, limited to the residents of Texas. What you can say (and be fair) is that "a study shows" or "When Texas studied it CCW holders were 7.7 times LESS likely to commit any crime that would cost them their CCW, and even then that crime was drunk driving." or whatever the statistic was. It's been a while since I browsed the Sturdevant study. And still it's only one study, and to "prove" something like this you'd want to be able to cite multiple studies from multiple locations.

The I formation is readily available. Last time I looked FL's statistics were about the same.

[Librarian]

Here's where I get lost. Doesn't the statute say something about a person's good cause being able to distinguish themselves from the general populace, which is how they decided unspecific/generic/precautionary self defense wasn't good enough in the first place?

Nope. That 'distinguishable' stuff is the part of Gore's policy that the 9th rejected.

Here's the bit of Penal Code: 26150

(a) When a person applies for a license to carry a pistol,
revolver, or other firearm capable of being concealed upon the
person, the sheriff of a county may issue a license to that person
upon proof of all of the following:
(1) The applicant is of good moral character.

(2) Good cause exists for issuance of the license.

(3) The applicant is a resident of the county or a city within the
county, or the applicant's principal place of employment or business
is in the county or a city within the county and the applicant
spends a substantial period of time in that place of employment or
business.

(4) The applicant has completed a course of training as described
in Section 26165.


(b) The sheriff may issue a license under subdivision (a) in
either of the following formats:
(1) A license to carry concealed a pistol, revolver, or other
firearm capable of being concealed upon the person.

(2) Where the population of the county is less than 200,000
persons according to the most recent federal decennial census, a
license to carry loaded and exposed in only that county a pistol,
revolver, or other firearm capable of being concealed upon the
person.

That is the entirety of the Penal Code language on both 'good cause' and 'good moral character' relating to a license to carry a concealed weapon.

[KyJim]

Here's where I get lost. Doesn't the statute say something about a person's good cause being able to distinguish themselves from the general populace, which is how they decided unspecific/generic/precautionary self defense wasn't good enough in the first place?

No, that's how the county and sheriff applied it. The statute begins:

(a) When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following:
(1) The applicant is of good moral character.
(2) Good cause exists for issuance of the license. . . .

Cal. Penal Code § 26150.

The majority in Peruta refers to the San Diego application of the statute:

California law delegates to each city and county the power to issue a written policy setting forth the procedures for obtaining a concealed-carry license. Id. § 26160. San Diego County has issued such a policy. At issue in this appeal is that policy’s interpretation of the “good cause” requirement found in sections 26150 and 26155: “[A] set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.” Good cause is “evaluated on an individual basis” and may arise in “situations related to personal protection as well as those related to individual businesses or occupations.” But—important here—concern for “one’s personal safety alone is not considered good cause.”

Peruta at p. 3. So, perhaps the opinion could have been just a bit clearer this was the policy they were quoting, not the statute.

[speedrrracer]

would make our violent crime rate look a lot like Switzerland. (Where, by the way, most households keep a REAL assault weapon, and a cache of ammo).

I'd be careful about using that argument. Last month I was on vacation, met a young Swiss couple on their honeymoon. He is an officer in the Swiss military, and told me that yes, many individuals (himself included) keep an assault weapon at home, but that ammo in the home is illegal (for him as well). We both shook our heads at the stupidity of politicians worldwide.

I was suprised -- I thought as you do. Just an FYI, don't want to derail the thread.

As for the Brady campaign, I'm very glad they filed their silly document. It cheapens the act of the AG, and imo makes it easier to dismiss.

[maestro pistolero]

Thanks for clarifying on the ammo issue in Switzerland. It's been some time since i looked into it. Nevertheless, I think the bulk of my argument stands. My point about the low crime rate of CCW permitees relies mostly on the FLA record where the number of permits revoked for either criminal or administrative reasons. Florida, of course, has perhaps the longest history from which to draw data.

http://johnrlott.blogspot.com/2013/1...ermits-in.html

From John Lott's website:

Number of Concealed handgun permits in Florida reaches 1,177,051 in September 30, 2013
With 2,541,460 permits issued and 168 revoked for revocations for firearm violations, the rate of Florida concealed handgun permits that have been revoked for firearm violations is only 0.0066 percent. Since January 2008, there have only been 4 revocations for any type of firearms related violation -- an annual rate of about 0.696 revocations. With an average of about 850,000 permit holders over that period, that is an annual revocation rate of 0.00008 percent, or less than one ten thousandth of one percent.

This data is very compelling and I can't imagine how the CA AG could make an empirical case that CCW licensees create a measurable public safety hazard. Any panel of judges that's doing its job will hold the AG's feet to the fire and she will lose this argument.

[KyJim]

Reference my post 221 on standing of AG Harris, the supplemental brief filed by Gura in the Supreme Court in Drake mentions the standing issue as a complication for Pertua making its way to the Supreme Court:

And any plans by California’s Attorney General to intervene and seek rehearing might be complicated by the panel’s belief that its decision did not implicate any state statutes.

However, he also refers to a previous footnote where he opines that there would not be much left of the "good cause" requirement of the California statute if a constitutional self-defense interest" constituted good cause.

[JimDandy]

This data is very compelling

Looking at what little you've quoted it's not nearly as compelling as the Texas study. They broke down the rate of 21+ holders, and non-holders, males, and females, and types of crimes that would result in the revocation of a Texas CHL.