Peruta v. County of San Diego (CCW Case)

press1280 · Dec 10, 2014

danb said:
True. Also questions of significance or (unusual) procedure. Gore is not appealing. If Gore has a problem with the result he should appeal. Regular procedure as I understand it means taking Baker and/or Richards, the state could argue or file briefs in those cases and still overrule Peruta. I bet the 9th has left a wrongly decided panel decision stand dozens and dozens of times when a defendant did not appeal, while they waited for right case to take en banc. How many times has a court 1) allowed the AG to intervene at the en banc level at the last minute, 2) after being warned state law was implicated and denying to participate, 3) when the defendant themselves declines to appeal?

Imagine the disarray if federal courts allowed this kind of willy-nilly last minute intervention when states did not like the result, because the defendant was not appealing. Who knows... SCT may look at it for the unusual procedure alone.

To me, this is that moment in poker when your excitement overwhelms your brain. Taking Peruta screams look at me!!! Look this is so important we bent over backwards to take this case!!. I think if she was smart she'd take a deep breath and move to Richards.

I'd take a wild guess and say the 3 scenarios you point out are extremely rare, if ever happening before. The intervention has taken off on a case all its own. As far as Richards she is trying to get involved in that too. I think the state was caught off guard by Gore's bowing out (and the loss) and is now scrambling to get involved because they're afraid Yolo County may not proceed to SCOTUS if they get denied en banc.

There was a good article on en banc and how some judges are asking the question, if the case is good enough for en banc why isn't it good enough for SCOTUS? SCOTUS' function these days is almost exclusively devoted to resolving splits. We see them taking many cases which deal with very technical aspects of the law that just don't touch everyday people, while continually bypassing cases that do affect many people.

esqappellate · Dec 10, 2014

rlc2 said:
Esqappellate, thank you.

What is your opinion on the dual timing of Harris' appeal of denial of intervention, with sua ponte call for en banc rehearing.

It seems to me that one interpretation would be to make the use of all options more efficient, and fair-appearing.

Please correct me if am am wrong, but should Harris be granted intervention, then the State IS a party, and can take over from San Diego County, correct?

And if the larger panel says, lets rehear, then Harris gets that second bite at the apple in the Garden of Eden in the 9th. (ok, the metaphor is a bit lame...)

But, if the 9th judges, as individuals believe in the law, and their fidelity to their oath, and if as men in a position of high trust, fiduciaries of that public trust, if you will forgive my layman's words, and they are at all sensitive to the reputation of the 9th,

and to their own individual reputations, then would it be better for them to say, "we respect our peers of the 3 judge panel,, and their fidelity to their oath, and while noting differences of opinion exist, believe the decision best respects the law, as is...and deny rehearing, while respecting the Sovereign State and its representatives responsibility to appeal for cert as desired.

Is that just my hopeful thinking, for a rational Solomonic decision, or hopelessly naive?
(I know the 9th will never BE the garden of eden, but aviding future sin would be beneficial, no?)

There is one other interpretation, that Judge Thomas would aver, and I wonder if in your opinion, is there a clear and compelling reason, under the law, to rehear the case?

I realize that may be too blunt to have to answer, in a public forum, given your work environment requires detachment, and respect for process, and Judges you might go before in future.

So, outside of going to law school, how would a lay person score that?

And while I find kcbrowns political affiliation theory interesting, I think it both overstates that influence, and does not take into account the scales of justice, on the law, the arguments, and the ability of lawyers to educate and persuade, or the integrity of federal judges.

Is it even possible to say, for example that "Judge Thomas position is a 10% chance" vs the existing decision, on the strength of law?
Is there anything new, that has come up, that changes things since then?
Where else, would a newb look for relative strength on the opposing legal arguments? I dont have time for law school..��

And I hate to default to "who appointed them". That seems too simple, depressing, and if mostly true, horribly disappointing...

(not a comment on you, kc, but on implications...to this old boy scout)

If they are to take the case en banc, they need a party to argue on both sides. Courts sit to assess arguments and they are, as a rule, very uncomfortable deciding a case without the benefit of advocacy on all sides. An amicus is not good enough, if only because the rights of an amicus are limited, both in their standing before the court and in the arguments they are permitted to raise. An intervenor is a full party, that is what intervention means. Who ever the judge was who acted sua sponte undoubtedly also requested a vote on the Harris' petition for rehearing en banc on the intervention. My educated guess is that this judge wants Harris in the case before granting en banc. That suggests that if Harris can't get intervention en banc, then en banc in Peruta (on the merits) may not be granted. Judge O'Scannlian's opinion on the denial of intervention is very good and it is something on which granting en banc would truly be extraordinary. After all, Harris could have intervened at any time and actively resisted being a party in Richards. That cannot be lost on the court.

As to whether there is reason for en banc on the merits, the answer is that it clearly satisfies the en banc criteria set forth in Rule 35 of the Rules of Appellate Procedure, as the panel's decision is pretty much in conflict with Woollard, Kachalsky, and Drake. Such a circuit conflict is a listed reason in Rule 35. That does not mean that en banc will be or even should be granted. Lots of en banc requests in such conflicts are NOT granted in similar circumstances, including several in my personal experience. Judges often seem to think that intercircuit conflicts are something that the sCT should resolve, especially on issues that need SCT resolution for clarity in the law. This issue no doubt qualifies on that score. Indeed, en banc used to be pretty much limited to intra circuit conflicts, and was granted to make circuit precedent consistent -- the amendments to Rule 35 on intercircuit conflicts are fairly recent (1998). There are important institutional reasons to limit en banc cases -- judges hate them as they are real time burners. As usual, O'Scannlian's opinion is a model decision of clarity, reason and logic and is well supported by Heller and McDonald, which resolved the most fundamental 2A issues (individual right applicable to the states). After Heller and McDonald, there is less reason to grant en banc as this ground has been plowed by controlling SCT decisions that even the 9th Circuit is obligated to follow. Judges will have their hands full with O'Scannlain's opinion and his reading of Heller and McDonald. That could be enough to give pause to any judge sitting en banc.

As to KC's theory, I have always believed that, as an advocate, my oral arguments and briefs and the force of my logic and reasoning make a difference -- it is why I work so hard on them. Federal Judges are not politicians, they do not run for office and they can't be fired. The art of advocacy is to convince judges, people trained in the law, who generally revere the law and who, as a thinking human being, are not necessarily sympathetic with the result you want, to rule for you notwithstanding. I do it all the time, usually quite successfully. That is why I resist KC's position as overly simplistic -- it simply does not match up with my personal experience. He has a point, for sure, but it is not outcome determinative. I am not prepared to say that 2A is so unique that the force of logic and reasoning are nullified.

Inigoes · Dec 10, 2014

Amicus Brief by Law Center to Prevent Gun Violence

Cliff notes: They want Kamala Harris to intervene

kcbrown · Dec 10, 2014

esqappellate said:
As to KC's theory, I have always believed that, as an advocate, my oral arguments and briefs and the force of my logic and reasoning make a difference -- it is why I work so hard on them.

As you should, because they almost certainly do for at least the majority of cases you have worked on. But I would wager that those cases did not involve a subject that strikes fear into the hearts of people to anything like the degree that the prospect of people carrying guns in public does.

It is very important to understand the fear factor here. It makes all the difference in the world.

Federal Judges are not politicians, they do not run for office and they can't be fired.

But they do "run for office" once, at least, and that is when they are being considered for the bench. But most certainly, they don't campaign or anything, nor do they need to convince the public of their qualifications.

Additionally, while the position they're being nominated for is not a political office, the position they harken from often is. State judges are often elected, as are attorney general positions.

Regardless of that, their nomination is politically motivated. My hypothesis ties back to that.

The art of advocacy is to convince judges, people trained in the law, who generally revere the law and who, as a thinking human being, are not necessarily sympathetic with the result you want, to rule for you notwithstanding. I do it all the time, usually quite successfully. That is why I resist KC's position as overly simplistic -- it simply does not match up with my personal experience. He has a point, for sure, but it is not outcome determinative. I am not prepared to say that 2A is so unique that the force of logic and reasoning are nullified.

Then explain why there is such a consistent party-based disparity in the support for the right, all the way up to the Supreme Court level. Do you really believe it to be an accident that no Democrat-nominated members on the Supreme Court sided for the right in either McDonald or Heller whilst those who sided for it were all Republican nominees?

Jerzee Transplant · Dec 10, 2014

Inigoes said:
Amicus Brief by Law Center to Prevent Gun Violence

Cliff notes: They want Kamala Harris to intervene

Inigoes

Thank you for this news about Peruta and the 9th.

Surprised you could even get in here with all the arguing.

This thread is hijacked.

Too much speculating, prognosticating etc about probababilities, models, etc mostly relating to Peruta in only the most general of terms.

How about someone starting another thead for esoterical dissertations of political probabilities?

People that bookmark this thread aren't looking for such clutter

FrankZ · Dec 10, 2014

Jerzee Transplant said:
Inigoes

Thank you for this news about Peruta and the 9th.

Surprised you could even get in here with all the arguing.

This thread is hijacked.

Too much speculating, prognosticating etc about probababilities, models, etc mostly relating to Peruta in only the most general of terms.

How about someone starting another thead for esoterical dissertations of political probabilities?

People that bookmark this thread aren't looking for such clutter

I see the irony, do you?

rlc2 · Dec 10, 2014

Thank you! Clear, concise, elegant. RESPECT.

esqappellate said:
If they are to take the case en banc, they need a party to argue on both sides. Courts sit to assess arguments and they are, as a rule, very uncomfortable deciding a case without the benefit of advocacy on all sides. An amicus is not good enough, if only because the rights of an amicus are limited, both in their standing before the court and in the arguments they are permitted to raise. An intervenor is a full party, that is what intervention means. Who ever the judge was who acted sua sponte undoubtedly also requested a vote on the Harris' petition for rehearing en banc on the intervention. My educated guess is that this judge wants Harris in the case before granting en banc. That suggests that if Harris can't get intervention en banc, then en banc in Peruta (on the merits) may not be granted. Judge O'Scannlian's opinion on the denial of intervention is very good and it is something on which granting en banc would truly be extraordinary. After all, Harris could have intervened at any time and actively resisted being a party in Richards. That cannot be lost on the court.

As to whether there is reason for en banc on the merits, the answer is that it clearly satisfies the en banc criteria set forth in Rule 35 of the Rules of Appellate Procedure, as the panel's decision is pretty much in conflict with Woollard, Kachalsky, and Drake. Such a circuit conflict is a listed reason in Rule 35. That does not mean that en banc will be or even should be granted. Lots of en banc requests in such conflicts are NOT granted in similar circumstances, including several in my personal experience. Judges often seem to think that intercircuit conflicts are something that the sCT should resolve, especially on issues that need SCT resolution for clarity in the law. This issue no doubt qualifies on that score. Indeed, en banc used to be pretty much limited to intra circuit conflicts, and was granted to make circuit precedent consistent -- the amendments to Rule 35 on intercircuit conflicts are fairly recent (1998). There are important institutional reasons to limit en banc cases -- judges hate them as they are real time burners. As usual, O'Scannlian's opinion is a model decision of clarity, reason and logic and is well supported by Heller and McDonald, which resolved the most fundamental 2A issues (individual right applicable to the states). After Heller and McDonald, there is less reason to grant en banc as this ground has been plowed by controlling SCT decisions that even the 9th Circuit is obligated to follow. Judges will have their hands full with O'Scannlain's opinion and his reading of Heller and McDonald. That could be enough to give pause to any judge sitting en banc.

As to KC's theory, I have always believed that, as an advocate, my oral arguments and briefs and the force of my logic and reasoning make a difference -- it is why I work so hard on them. Federal Judges are not politicians, they do not run for office and they can't be fired. The art of advocacy is to convince judges, people trained in the law, who generally revere the law and who, as a thinking human being, are not necessarily sympathetic with the result you want, to rule for you notwithstanding. I do it all the time, usually quite successfully. That is why I resist KC's position as overly simplistic -- it simply does not match up with my personal experience. He has a point, for sure, but it is not outcome determinative. I am not prepared to say that 2A is so unique that the force of logic and reasoning are nullified.

Thank you. I see why you win, and am reassured in my faith in how things work.

rlc2 · Dec 10, 2014

mea culpa

FrankZ said:
I see the irony, do you?

Jerzey, sorry for my part on thread drift...I'm new so I don't "grok" the informal rules here. Over at calguns it gets kind of hairy with multiple threads, so the mod, named Librarian, tends to make one sticky, with 'official' updates, including the NRA/counsel updates, once enough time has passed for/if when its appropriate, or to educate, pass links on en banc rules.

And then everyone else, noobs, dedicated long-time supporters, law students, including those who DO know what they are talking about, and various and sundry riff-raff (I include myself), rabble rousers, tin foil hat wearer's and the lurkers go, to chew the fat in the interminable periods in-between ("two weeks"), argue, rough-house, and jab elbows, until the adults in sandbox intervene.

Jerzee Transplant · Dec 10, 2014

To be clear, I am referring mostly to long, tortured, "what if" probability scenarios based upon political parties of judges...

Not general or specific ideas and points about en banc, sua sponte, intervenor status etc.

All good/ great info.

danb · Dec 10, 2014

Inigoes said:
Amicus Brief by Law Center to Prevent Gun Violence

Cliff notes: They want Kamala Harris to intervene

Wow. That was exceptionally weak. The court should grant intervention because counties are confused?? This is their best shot?

Thanks for posting it.

randian · Dec 10, 2014

Why should Harris get to intervene? Non-government parties don't get a second bite so neither should she.

kcbrown · Dec 10, 2014

randian said:
Why should Harris get to intervene? Non-government parties don't get a second bite so neither should she.

Yep, that's exactly how it should be. There is a whole lot about this case that makes it a litmus test of the judicial system's objectivity. My position on that is already all too clear, of course. This case has the potential to redeem the system. But I'm skeptical in the extreme that it will, and fully expect it to damn the system for good. I pray I'm wrong.

MDFF2008 · Dec 10, 2014

kcbrown said:
Yep, that's exactly how it should be. There is a whole lot about this case that makes it a litmus test of the judicial system's objectivity. My position on that is already all too clear, of course. This case has the potential to redeem the system. But I'm skeptical in the extreme that it will, and fully expect it to damn the system for good. I pray I'm wrong.

I agree with you.

press1280 · Dec 11, 2014

danb said:
Wow. That was exceptionally weak. The court should grant intervention because counties are confused?? This is their best shot?

Thanks for posting it.

That and several references to pre-Heller cases regarding police power and the typical anti-CCW snippets (didn't know the Bradys were advocating for LOC :sad20:

)

Inigoes · Dec 12, 2014

What are we waiting for:

Plaintiffs response for the Intervenor En Banc around 12/17ish
All parties, inluding amici to file briefs in response to the sua sponte call around 12/17ish.
Around the last week in January for the court to vote on the sua sponte call ( according to esqappellate's math)

This is going to get confusing real fast. Will this force Sheriff Gore to respond, since CA is not a party to the lawsuit?

fightinbluhen51 · Dec 12, 2014

Inigoes said:
What are we waiting for:

Plaintiffs response for the Intervenor En Banc around 12/17ish

All parties, inluding amici to file briefs in response to the sua sponte call around 12/17ish.

Around the last week in January for the court to vote on the sua sponte call ( according to esqappellate's math)

This is going to get confusing real fast. Will this force Sheriff Gore to respond, since CA is not a party to the lawsuit?

I think, if I am not mistaken, most talking heads here think Gore is forced to respond, but they don't have to partake. They could conceivably file and say "If you want to grant intervenor status, that's fine by us, but we're done and not partaking; we've taken our ball and gone home, waiting for you guys to sort this out before we start issuing."

Blacksmith101 · Dec 14, 2014

In the Amicus Brief by Law Center to Prevent Gun Violence I had trouble getting past the first two sentences.

On February 13, 2014, a divided panel of this Court ruled that the Second Amendment requires every state in this Circuit to issue a permit to carry a hidden, loaded gun in public to virtually anyone who wants one. The panel’s drastic expansion of the Second Amendment right is unprecedented in American history and contradicts the decisions of the Supreme Court, this Court, and at least four other circuits.

That is not an expansion of the Second Amendment the requirement to have any "permit" is an "Infringement" on the original intent and wording of the Second Amendment.

danb · Dec 14, 2014

fightinbluhen51 said:
I think, if I am not mistaken, most talking heads here think Gore is forced to respond, but they don't have to partake. They could conceivably file and say "If you want to grant intervenor status, that's fine by us, but we're done and not partaking; we've taken our ball and gone home, waiting for you guys to sort this out before we start issuing."

Seems to me if the court orders Gore to respond, they will get the same response as last time:

Appellee believes that the Attorney General is the appropriate intervenor in this case because the panel opinion finds California’s legislative scheme regarding the carrying of handguns unconstitutional. Appellee requests that the Court grant the Attorney General’s Motion to Intervene. Appellee takes no position on other intervenors.

http://michellawyers.com/wp-content...an-Diego_Appellees-Court-Ordered-Response.pdf

Not sure why they would order them to respond again, since the response would be "ditto."

rlc2 · Dec 14, 2014

I wonder if Harris is picking up Gore's past tab on legal defense and plaintiffs fees, when Michel/Clements/Gura and NRA win at SCOTUS.

If he does bail and point to Harris, at least Gore can claim he isn't wasting the County taxpayers money any further.

randian · Dec 14, 2014

Why would Gore care about wasting taxpayer money? To an anti-gunner that would be a benefit.

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