Peruta v. County of San Diego (CCW Case)

[Kharn]

interesting....

 

[krucam]

I read this as CA9 the Panel agreeing with Gura that the case is Moot following the Sheriff's comments to the media that he isn't appealing. The Court Panel I believe wants something in writing (official confirmation) of the "I'm Done" references.

Having these official docs in hand, I don't think it takes a night in a Holiday Inn Express to see which way the Court Panel is leaning regarding CA's en Banc intervention requests.



IANAL.

 

[occbrian]

Esq... Please explain what this means.

 

[Mr H]

I agree Mark, but would it not be more accurate (at the moment) to say "the Panel is leaning"??

 

[krucam]

I agree Mark, but would it not be more accurate (at the moment) to say "the Panel is leaning"??

Concur....edited....thanks...

 

[jrwhitt]

But note he HASN'T started issuing - those who applied after they ruled (but stayed the mandate) have received letters saying they do not meet the good cause requirement but their application will be held and review following the court's issuing an order.

 

[ryan_j]

Latest development. Court in Peruta orders defendant Gore to respond to petitions for intervention and to address Gura's suggestion that Peruta is moot. In separate orders (entered in each case), the court has ordered that consideration of the petitions for rehearing filed in Richards and Baker is put on hold. See attached. This is *very* interesting

I saw that on CalGuns today. This is very interesting.

One poster even suggested that Gura was looking for fame in Richards... but really? I think we are all just looking to get this resolved. Drake would end it once and for all, but having en banc denied would at least get it settled in CA.

 

[ryan_j]

But note he HASN'T started issuing - those who applied after they ruled (but stayed the mandate) have received letters saying they do not meet the good cause requirement but their application will be held and review following the court's issuing an order.

Yeah. Gore hasn't started issuing but a couple other counties have. Orange County most notably, which was also being separately sued.

 

[OleCuss]

Since Gore has not started issuing it is difficult to see how the case could be considered moot. From the viewpoint of the person applying for CCW within Gore's jurisdiction there is no difference other than their application is not being denied - not being granted either.

And if Gore changes his policy such that within the next two weeks he starts issuing just so that the case will be mooted, then he will have contradicted/reversed himself in politically damaging ways.

I mean seriously, if he starts issuing he will have dissed Kamala Harris (our AG) and will grossly alienate his anti-RKBA constituents by starting to issue before forced to do so. And mooting the case will mean that he will have spent a lot of time and taxpayer money on a losing cause - not a terribly critical thing for him but it doesn't help. Then consider that mooting the case will tick off those who value liberty? Changing policy to moot the case will be politically costly and it would take a huge amount of pressure from very powerful forces to get him to do that.

So I don't see a Gore policy change that has mooted the case, and I don't see a forthcoming change which would moot the case.

What I do not understand is the game which Gura is playing. If he is successful at getting Peruta mooted I don't see how that helps us unless he has inside information which gives him great confidence that another case would give us an even better result. I don't share that confidence, but IANAL.

 

[press1280]

Since Gore has not started issuing it is difficult to see how the case could be considered moot. From the viewpoint of the person applying for CCW within Gore's jurisdiction there is no difference other than their application is not being denied - not being granted either.

And if Gore changes his policy such that within the next two weeks he starts issuing just so that the case will be mooted, then he will have contradicted/reversed himself in politically damaging ways.

I mean seriously, if he starts issuing he will have dissed Kamala Harris (our AG) and will grossly alienate his anti-RKBA constituents by starting to issue before forced to do so. And mooting the case will mean that he will have spent a lot of time and taxpayer money on a losing cause - not a terribly critical thing for him but it doesn't help. Then consider that mooting the case will tick off those who value liberty? Changing policy to moot the case will be politically costly and it would take a huge amount of pressure from very powerful forces to get him to do that.

So I don't see a Gore policy change that has mooted the case, and I don't see a forthcoming change which would moot the case.

What I do not understand is the game which Gura is playing. If he is successful at getting Peruta mooted I don't see how that helps us unless he has inside information which gives him great confidence that another case would give us an even better result. I don't share that confidence, but IANAL.

How so? The Peruta opinion still stands as CA9 circuit law.
I'm fuzzy on a lot of things here though. What I think Gura is doing is trying to cement the Peruta opinion AS circuit law, and end Peruta's case here and now since Gore will not appeal further. This would mean Prieto's attempt at en banc would basically be sunk, even the dissenter (Thomas) concurred at the result of Richards based on settling of Peruta. That means Prieto's only other option would be to file for cert, thus helping Gura's chances of getting cert through Drake, Richards, or both. Or so I think. What I'm real fuzzy on is how much deference Peruta gets as circuit law considering it was released a few weeks before Richards and heard by the same panel.

 

[Inigoes]

But note he HASN'T started issuing - those who applied after they ruled (but stayed the mandate) have received letters saying they do not meet the good cause requirement but their application will be held and review following the court's issuing an order.

Looks like the court is doing exactly that with the last setence.

 

[danb]

Yeah. Gore hasn't started issuing but a couple other counties have. Orange County most notably, which was also being separately sued.

Gore has made public statements though that he thought the opinion was clear and he had no intention of seeking en banc review or otherwise appealing. He said he would change the policy as soon as the mandate was issued. He told the Republican Central Committee he would follow the decision.


He's running for re-election (I think it's in June, 2014). He's a Republican. The court is putting him in a tough spot (maybe). Sounds to me as though they want him to say on paper what he's been telling the media.

 

[fightinbluhen51]

I read this as CA9 the Panel agreeing with Gura that the case is Moot following the Sheriff's comments to the media that he isn't appealing. The Court Panel I believe wants something in writing (official confirmation) of the "I'm Done" references.

Having these official docs in hand, I don't think it takes a night in a Holiday Inn Express to see which way the Court Panel is leaning regarding CA's en Banc intervention requests.



IANAL.

Do I read your insight correctly in that we're being telegraphed that the "State AG's intervention petition is denied?" (Note: Fingers are crossed, not attempting to jinx us here).

 

[Kharn]

How so? The Peruta opinion still stands as CA9 circuit law.
I'm fuzzy on a lot of things here though. What I think Gura is doing is trying to cement the Peruta opinion AS circuit law, and end Peruta's case here and now since Gore will not appeal further. This would mean Prieto's attempt at en banc would basically be sunk, even the dissenter (Thomas) concurred at the result of Richards based on settling of Peruta. That means Prieto's only other option would be to file for cert, thus helping Gura's chances of getting cert through Drake, Richards, or both. Or so I think. What I'm real fuzzy on is how much deference Peruta gets as circuit law considering it was released a few weeks before Richards and heard by the same panel.

Thomas concurred that the conclusion in Richards was correct in that it followed Peruta, but Prieto is still able to ask CA9 to reconsider Richards, and thus Peruta, en banc, even if Gore does not.

 

[esqappellate]

Esq... Please explain what this means.

it is hard to know what it means. First, a lot depends on what Gore says. If Gore will say he has read the court's opinion, seen the light and thus has actually changed his policy and will issue regardless of the court's mandate, then the case *is* moot and the court will deny the motions for intervention by the AG and Peruta is over. If Gore says that he merely accepts the Court's decision and will issue as soon as compelled to do so when the mandate issues (the court acts *only* through its mandate), then the case is not moot (at least not technically). Mootness is jurisdictional so the Court is doing exactly the right thing here in asking Gore to take position, as the court has an independent obligation to assess its jurisdiction at all stages of the proceeding, including now.

Then, it becomes harder to predict what the court will do. Gore is the only proper party defendant (Gura is right on that). In these circumstances, there are very good jurisprudential reasons for the court deny intervention in this particular case as the AG has gone out of its way to avoid being an actual defendant. Judicial estoppel and all that. Gura, in his opp. filed in Richards, is right on that too. Denial of intervention means Peruta is over and that is a decision for the panel (although it is possible for the AG to seek en banc on that too, but that would be extraordinary). So it may depend heavily on what Gore says about intervention (whether he agrees, opposes or takes no position). If Gore says that he is just tired of litigation and wants to hand off the baton to the AG, then intervention will likely be granted. If Gore opposes or doesn't take a position, then intervention may well be denied.

BTW, all of this bears on the petitions filed in Baker and Richards (which is why the panel stayed further consideration in those cases). If intervention is granted in Peruta, then the petitions in Baker and Richards will be held, pending disposition of the Peruta petition for rehearing en banc. If intervention is granted but the AG Peruta petition for rehearing en banc is denied, then rehearing en banc will likewise be denied in Baker and Richards.

If intervention is denied in Peruta, then it is still quite possible for the court to grant rehearing en banc in Richards and/or Baker. That is too tough to call right now. But at least in that case the Peruta mandate will issue and the case will be final for purposes of the SCT's consideration of Drake. So, if you want Drake to get granted by the SCT, the smart thing for Gore to do is moot out Peruta in his filing in two weeks. If the Ninth majority wants the SCT to rule in Drake, then the smart thing for them to do is deny intervention and/or deny rehearing en banc. Gore can, of course, file early and speed up the process by doing so. Note that a post-decision change in position by Gore will probably *not* prompt the court to vacate its decision in Peruta, BUT the court has discretion to do so. Gura is, therefore, taking a calculated risk here in suggesting mootness. See Armster v. U.S. Dist. Court for Cent. Dist. of California, 806 F.2d 1347 C.A.9 (Cal.),1986. The law gets very tricky here.

 

[mreaston]

By my reading, the "dispute" is whether or not the AG is granted intervenor status. Gura's argument flips the AG's argument to state that if Gore decided to start issuing tomorrow, the AG would have no way to stop it. If so, how then could she possibly have standing to intervene? So therefore the "dispute" is moot.

Why the panel would require Gore's input on this, I do not know.

 

[Hopalong]

Why the panel would require Gore's input on this, I do not know.

They likely want Gore's position on record formally, not just a lack of reply or media comments.

 

[Mr H]

Agree.

"Quit diddling, put it in writing, and make up our minds already."

 

[Patrick]

Everything is connected right now, much like the fight(s) over gay marriage were last year. CA-9, the SCT, some sheriff in San Diego, and a whole bunch of state governments and citizens sitting and rooting one party or the other from the sidelines. Because for the gun issue, you don't get much more high-stakes than right now. It appears the SCT is hanging and waiting, and the panel in the Ninth who decided Peruta is pushing the sheriff to weigh in on whether this case has any legs for further action.

Everything esquapellate said is (of course) spot on, but I'll add another bullet to his list of 'things the sheriff influences": what the Supreme Court might do in Drake.

Peruta is singularly significant. Richards and Baker rely on Peruta, so an appeal of those cases to SCT would require at least one hop of indirection to even get to Peruta's mandate. Remember how short those decisions were?

Those uber-short decisions create the indirection. There is not much to review in the text of the two decisions themselves. So getting from the 2-page Richards decision which said, "based on Peruta, Richards wins" to a full-out fight over Peruta's ruling and mandate is going to take a little footwork. It can (and would) happen, but it's not going to happen at the SCT level. Not for a first-impression case on public carry (I don't think it's first impression, but whatever. Nobody cares what I think.)

To overturn Peruta using Richards, the Ninth would have to open all the Peruta decision for interpretation, first. But getting there via Baker or Richards would be like prying open that spam-can of Russian 7.62 you found lying in your grandfather's basement - it will happen, but it's going to take time, effort and tools. And even then, the stuff inside might not be what you expected.

So if Peruta is gone, then the SCT basically has Drake and some possible form of case that maybe will come from the Ninth and maybe cover the issues in maybe a few trillion years.

Hence: interesting times.

 

[Maestro Pistolero]

It would be interesting if, at the end of this road, Peruta stood un-appealed.

If Peruta (which is to also say Baker and Richards) was left standing in the ninth, but was not somehow appealed to SCOTUS, it would be far from the worst outcome.

As I posted over at Calguns:

It's always good to preserve your wins. The ninth circuit comprises a whole lot of folks, over 60 million people. I like the idea of 20% of the population becoming accustomed to having their rights upheld and supported. Once people are accustomed to having the means of self-defense, they become very attached to the increased sense of security, and are less likely to let go of it easily.

Peruta, on its own, would stand as a fine monument to courts looking to apply Heller and McDonald faithfully.