En banc Decision in Peruta -- a loss

[Southwest Chuck]

What would be ideal (if we have to lose the en banc vote), is as close to a 50-50 split as possible with biting dissents that have great logical and policy force to their reasoning. Judge O'Scannlain does that sort of dissent routinely.

I didn't think the voting (detailed) results were released? Just a granted or denied announcement. Is this not the case in the 9th? Other circuits?

 

[esqappellate]

I didn't think the voting (detailed) results were released? Just a granted or denied announcement. Is this not the case in the 9th? Other circuits?

The results are not released unless the court orders it which they never do. However, individual judges are free to write and file dissents from a denial of rehearing en banc. All you have to do is count the published dissents.

 

[press1280]

The results are not released unless the court orders it which they never do. However, individual judges are free to write and file dissents from a denial of rehearing en banc. All you have to do is count the published dissents.

Hopefully all that dissent will join in the main dissent or write their own. I suppose there could be some that vote to re-hear but simply don't feel like writing a dissent or signing onto another's dissent?

Also, not sure if it was posted yet but here's Alan Gura's petition for the Richards companion case: http://blog.californiarighttocarry....tition-for-a-Full-Court-en-banc-rehearing.pdf
It basically echoes the Peruta petition, bottom line CA9 dodged the underlying question of whether the 2A applies outside the home, something which the CA solicitor general and the sheriff's counsel conceded to some degree.

I'm curious whether there's a precedent for SCOTUS kicking back a case (non-2A) because the court below flat out didn't answer the question?

 

[esqappellate]

Hopefully all that dissent will join in the main dissent or write their own. I suppose there could be some that vote to re-hear but simply don't feel like writing a dissent or signing onto another's dissent?

Also, not sure if it was posted yet but here's Alan Gura's petition for the Richards companion case: http://blog.californiarighttocarry....tition-for-a-Full-Court-en-banc-rehearing.pdf
It basically echoes the Peruta petition, bottom line CA9 dodged the underlying question of whether the 2A applies outside the home, something which the CA solicitor general and the sheriff's counsel conceded to some degree.

I'm curious whether there's a precedent for SCOTUS kicking back a case (non-2A) because the court below flat out didn't answer the question?

That sort of thing could arguably fall within the SCT's supervisory jurisdiction over the lower federal courts. That power is used in otherwise not cert worthy cases where the lower court simply disregarded some elemental rule or was blatantly unfair. For example, there was a 4th Circuit case where the court denied a habeas petition but obviously got the case mixed up with another case and refused to fix it. There is a judicial duty to decide the questions otherwise fairly before the court. They blew it here. An long shot, at best.

 

[press1280]

That sort of thing could arguably fall within the SCT's supervisory jurisdiction over the lower federal courts. That power is used in otherwise not cert worthy cases where the lower court simply disregarded some elemental rule or was blatantly unfair. For example, there was a 4th Circuit case where the court denied a habeas petition but obviously got the case mixed up with another case and refused to fix it. There is a judicial duty to decide the questions otherwise fairly before the court. They blew it here. An long shot, at best.

Definitely seems to be where they are directing both petitions, neither are arguing the panel's premise is wrong, only that the panel viewed it in a vacuum. But since they didn't ask for OC as a possible relief, does that necessarily entitle them to disregard it?

 

[esqappellate]

Definitely seems to be where they are directing both petitions, neither are arguing the panel's premise is wrong, only that the panel viewed it in a vacuum. But since they didn't ask for OC as a possible relief, does that necessarily entitle them to disregard it?

I am not sure that they didn't ask for OC. If you look at their petitions, they say that they did (the ban on OC occurred after the suits were filed). Page 10:
"In reality, this case is not, and has never been, about whether the Constitution protects a right to concealed carry. It is about whether the Constitution protects a right to carry at all. By refusing to answer that question, the en banc majority effectively refused to resolve the constitutional claims that Appellants have pressed—namely, whether depriving them of any outlet for carrying a handgun for self-defense violates the Second Amendment."

 

[Southwest Chuck]

Definitely seems to be where they are directing both petitions, neither are arguing the panel's premise is wrong, only that the panel viewed it in a vacuum. But since they didn't ask for OC as a possible relief, does that necessarily entitle them to disregard it?

From my understanding, the original pleadings (Richards) were made before open Carry (unloaded) was banned so how could they ask for it as a relief originally (without getting into the weeds of loaded[banned] vs unloaded OC [legal] at that point)?

But then again, Didn't Richards originally ask for either one though? ..... but then dropped it (OC) later on (after the District Court ruling but before 1st enbanc), or is my memory getting as bad as my old bones

Oh, and I hope ALL have a Happy and Safe Independence Day Celebration!

 

[777GSOTB]

The initial challenge in this case was to the sheriff's administration of the states LICENSING statute, and not the statute itself. They didn't like the sheriff's policy on showing " good cause " in order to receive a license. The plaintiffs sought a LICENSE, a concealed carry LICENSE...This case had nothing to do with open carry, and to suggest otherwise is just ridiculous. Yes, they attempted to amend their position that they should have some way of exercising the right to bear arms outside the home, but their desire for a concealed carry license in order to do that, was the fatal flaw....This case will never see a cert approval at the SCOTUS.

Peruta v City of San Diego
9th Circuit Court En Banc

Pg 51

"As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public. The Second Amendment may or may not protect to some degree a right of a member of the gereral public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But Plaintiffs do not challenge California's restrictions on open carry; they challenge only restrictions on concealed carry."

"If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment."

 

[GTOGUNNER]

The initial challenge in this case was to the sheriff's administration of the states LICENSING statute, and not the statute itself. They didn't like the sheriff's policy on showing " good cause " in order to receive a license. The plaintiffs sought a LICENSE, a concealed carry LICENSE...This case had nothing to do with open carry, and to suggest otherwise is just ridiculous. Yes, they attempted to amend their position that they should have some way of exercising the right to bear arms outside the home, but their desire for a concealed carry license in order to do that, was the fatal flaw....This case will never see a cert approval at the SCOTUS.

By the same token, the State was not a party to the initial suit.
This is not an every day legal case.

 

[777GSOTB]

By the same token, the State was not a party to the initial suit.
This is not an every day legal case.

It was well explained in their decision:

Peruta v City of San Diego
9th Circuit Court En Banc

Pg 47

"Under Federal Rule of Civil Procedure 24(a)(2), a party may intervene as of right if

(1) it has a significant protectable interest relating to the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede its ability to protect its interest; (3) the application is timely; and (4) the exiting parties may not adequately represent its interest."


"If we do not permit California to intervene as a party in Peruta, there is no party in that case that can fully represent its interests. At trial and on appeal, attorneys representing Sheriff Gore ably defended San Diego County's interpretation of the good cause requirement. But after the panel decision was issued, Sheriff Gore informed the court that he would neither petition for rehearing en banc nor defend the county's position in en banc proceedings. California then appropriately sought to intervene in order to fill the void created by the late and unexpected departure of Sheriff Gore from the litigation."

 

[Southwest Chuck]

The initial challenge in this case was to the sheriff's administration of the states LICENSING statute, and not the statute itself. They didn't like the sheriff's policy on showing " good cause " in order to receive a license. The plaintiffs sought a LICENSE, a concealed carry LICENSE...This case had nothing to do with open carry, and to suggest otherwise is just ridiculous. Yes, they attempted to amend their position that they should have some way of exercising the right to bear arms outside the home, but their desire for a concealed carry license in order to do that, was the fatal flaw....This case will never see a cert approval at the SCOTUS.

Peruta v City of San Diego
9th Circuit Court En Banc

Pg 51

"As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public. The Second Amendment may or may not protect to some degree a right of a member of the gereral public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But Plaintiffs do not challenge California's restrictions on open carry; they challenge only restrictions on concealed carry."

"If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment."

You are referencing Peruta. I was referencing Richards. I made that clear, twice.

 

[777GSOTB]

You are referencing Peruta. I was referencing Richards. I made that clear, twice.

Yes, Peruta is the relevant case before us. It's mentioned in the OP.

 

[Southwest Chuck]

Yes, Peruta is the relevant case before us. It's mentioned in the OP.

Oh your right, Richards has no bearing on the case at all. They weren't originally argued before the same panel either. Silly me ....

 

[777GSOTB]

Oh your right, Richards has no bearing on the case at all. They weren't originally argued before the same panel either. Silly me ....

Post up what the en banc court said about Richards then...I'll be waiting...

 

[Southwest Chuck]

Post up what the en banc court said about Richards then...I'll be waiting...

I hope you're holding yout breath too!

 

[777GSOTB]

I hope you're holding yout breath too!

Right,...it had no bearing on the Peruta case....Thanks for verifying that

 

[wolfwood]

response filed
State
http://cdn.ca9.uscourts.gov/datasto...10-56971 Reply pfr State of Calif 7-15-16.pdf

Yolo
http://cdn.ca9.uscourts.gov/datastore/general/2016/07/15/10-56971 reply pfr Yolo County 7-15-16.pdf

 

[Southwest Chuck]

Right,...it had no bearing on the Peruta case....Thanks for verifying that

I didn't verify anything. I was just trying to end the debate on a humorous note, since it was clear that you just wanted to argue. However, you seem compelled to be argumentative, have the last word and to "win", while making smart-alec (sp) remarks.

Not my job to explain things to you. If you seem to think that Peruta and Richards are unconnected, then that's your opinion. It doesn't make it true. Why would The State list both cases in their response filing (posted below by wolfwood)? I'm sure you can come up with some witty comment or some far afield rational. In any event, you can have the last word, as I'm sure you will be compelled to (so you can "win"). I'm done with you.

response filed
State
http://cdn.ca9.uscourts.gov/datasto...10-56971 Reply pfr State of Calif 7-15-16.pdf

Yolo
http://cdn.ca9.uscourts.gov/datastore/general/2016/07/15/10-56971 reply pfr Yolo County 7-15-16.pdf

Thanks wolfwood for posting the links

 

[esqappellate]

full en banc denied

August 15, 2016 Order attached.

 

[jrwhitt]

Grrrrrrrr