Duncan V. Becerra: A Win In The 9th Circuit

A three judge panel of the 9th Circuit Court of Appeals handed down a win today for the Second Amendment. In a 2-1 decision, the court found that the California ban on standard capacity magazines failed to pass the two part test and thus contravened the protections of the Second Amendment. They affirmed Judge Roger Benitez’s original ruling in Duncan v. Becerra. His ruling had been partially stayed pending this appeal.

As with all Second Amendment wins in the 9th Circuit, I fully expect that this case will go to an en banc hearing. It will either be granted on the request of one of the other judges sua sponte or on appeal by California. In the meantime, this is a win to be savored.

Below is a synopsis of the court’s 81 page opinion and dissent. The opinion was written by Judge Kenneth Lee and was joined by Judge Consuelo Callahan. Chief Judge Barbara Lynn of the Northern District of Texas, sitting by designation, was the dissenter. Judge Lee, a native of South Korea, was appointed by President Trump to fill the seat left open by the death of liberal icon Judge Stephen Reinhardt.

The panel affirmed the district court’s summary judgment in favor of plaintiffs challenging California Government Code § 31310, which bans possession of large-capacity magazines (“LCMs”) that hold more than ten rounds of ammunition; and held that the ban violated the Second Amendment.


The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)

The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.


Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.


The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.


The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.


Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.


9th Circuit Issues Stay In Rhode

The 9th Circuit Court of Appeals granted an administrative stay of Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra late on Friday, April 24th. Judge Benitez had earlier that day denied an ex parte motion by Attorney General Xavier Becerra requesting a stay of his injunction.

In dismissing it he said, in part:

The Attorney General does not point to any change in circumstances or new evidence to undermine that conclusion. That the laws have been in effect for 10 months reflects this Court’s patient consideration, not its constitutional approval. Any delay was occasioned by judicial optimism that the high erroneous denial rate of early Standard background checks might significantly improve. It did not. Instead, the constitutional impingements on Second Amendment rights that began immediately, will continue if a stay is granted. Thus, the Court cannot find the remaining two factors tip the scales in favor of a stay. A 16.4% error rate that deprives citizens the enjoyment of any constitutional right is offensive and unacceptable.

The Attorney General’s Office then filed an emergency motion with the 9th Circuit to stay the injunction pending appeal and requested immediate relief. They argued that a stay would be in the public interest and would prevent prohibited persons from purchasing ammunition. They went on to say the plaintiffs were not prevented from purchasing ammunition. Of course, this ignores the 16.4% error rate referenced by Judge Benitez.

It should be noted that the stay granted by the 9th Circuit is an administrative stay and does not address the merits of Becerra’s argument. They will rule on that later.

The stay was issued at 9:45pm local time on the 24th. Ammunition orders in the system prior to that could be processed according to what I’m reading.

Freedom Munitions and Brownells both said they would be honoring orders made prior to that time and would be shipping directly to the purchaser.

US V. Torres – Do “Unlawful Aliens” Have The Right To Possess Firearms?

Does an illegal alien, unlawful alien, undocumented immigrant, or whatever your favorite term for those in this immigration class have the right to possess a firearm under the Second Amendment? Five circuit courts have said no and now the 9th Circuit Court of Appeals in an unanimous decision agrees in a decision released yesterday. They have all found that 18 U.S.C. § 922(g)(5)(A) is constitutional.

Some quick background on Victor Manuel Torres. He was born in Mexico and was brought to the San Jose, California area when he was four years old in 1989. Neither of his parents had legal immigration status. Notwithstanding that, he was enrolled in the San Jose school system until he was expelled in 2000 for gang membership in the Sur Santos Pride gang. A couple of years later he was sent to live with relatives in Mexico to get his act together. In 2005, he made three attempts to illegally enter the United States. The first two times he was caught and allowed to voluntarily return to Mexico. His third attempt was successful and he returned to live in the San Jose area. He married a US citizen in 2012 but made no attempt to apply for legal status. So you have a person who is in the United States unlawfully, did not have a right to legal status due to his parents, and who made no effort to change his status after his marriage to a US citizen.

In 2014, Torres was arrested when attempting to sell a stolen bicycle by the Los Gatos Police Department. When he consented to allow officers to look in his backpack for identification, they found a loaded .22 revolver, bolt cutters, and two homemade suppressors. In addition to state criminal charges, Torres was indicted and convicted on one count of being an unlawful alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A). He moved to dismiss this charge on the basis that the Second Amendment protections applied to him and that § 922(g)(5)(A) violated the Second Amendment. The District Court disagreed and after trial sentenced him to 27 months in prison with three years probation. He then appealed to the 9th Circuit.

The 9th Circuit used a two-step inquiry to see if § 922(g)(5)(A) was unconstitutional both facially and as applied to Torres. The inquiry sought to determine whether the law burdened the Second Amendment and then. if so, the proper level of scrutiny. Noting that the 4th, 5th, 7th, 8th, and 10th Circuits had dealt with this question they proceeded to examine those cases. The key issue was whether “the people” in the Second Amendment was meant to apply to those illegally in the United States.

The two cases that all six of the circuits used to determine “the people” were US v Verdugo-Urquidez (1990) and DC v Heller (2008). The first case said “the people” in the Bill of Rights were those in a class of persons who are a) part of a national community and b) who have developed a sufficient connection with this country to be considered part of it. Likewise, the Heller case emphasized the Second Amendment as “protecting the rights of citizens” and “belonging to all Americans”. It went on to use the terms “law-abiding” and “responsible” in reference a citizen’s right to use arms in defense of their home. The five other circuits had all agreed that § 922(g)(5)(A) was constitutional but disagreed on the reasoning.

The 4th, 5th, and 8th Circuits found that unlawful aliens (the preferred term of the 9th Circuit) were not members of the law-abiding community per Heller and thus not entitled to be “the people” under the Second Amendment. Conversely, the 7th and 10th agreed that Heller was not conclusive on who should be considered “the people” as that was only secondary to whether it was an individual or collective right. They thus relied upon Verdugo-Urquidez to determine that those in question were “the people” or assumed to be. However, under intermediate scrutiny their exclusion from Second Amendment rights was allowed because it did not severely burden that right.

The 9th Circuit decided that:

However, we agree with the Tenth Circuit’s approach,
because we believe the state of the law precludes us from
reaching a definite answer on whether unlawful aliens are
included in the scope of the Second Amendment right. The
Tenth Circuit correctly held that this question is “large and
complicated.” Id. at 1169. Therefore, on this record, we find
it imprudent to examine whether Torres (as an unlawful alien)
falls within the scope of the Second Amendment right. As
such, we assume (without deciding) that unlawful aliens, such
as Torres, fall within the scope of the Second Amendment
right
as articulated under
Heller and Vergudo-Urquidez and
proceed to the appropriate scrutiny we should give to
§ 922(g)(5).

The court then had to decide whether § 922(g)(5)(A) imposed a permissible restriction on Torres’ Second Amendment right and what was proper level of scrutiny. Torres argued for strict scrutiny but the court disagreed.

However, intermediate scrutiny is
appropriate “if a challenged law does not implicate a core
Second Amendment right, or does not place a substantial
burden on the Second Amendment right.”
Jackson, 746 F.3d
at 961. Although not dispositive of the question, we note that
there has been “near unanimity in the post-Heller case law
that, when considering regulations that fall within the scope
of the Second Amendment, intermediate scrutiny
is
appropriate.”
Silvester, 843 F.3d at 823.

Here I might say that the “near unanimity” is due more to resistance by the lower courts to Heller and McDonald than to true constitutional jurisprudence.  The court goes on to decide that the severity of the law’s burden on Torres’ right is tempered. That is due to the fact that the prohibition on an unlawful alien’s possession of a firearm does not continue once he or she has left the United States. Moreover, if an unlawful alien was to acquire lawful immigration status the prohibition in § 922(g)(5)(A) would be removed.

The court agreed with the government’s contention that § 922(g)(5)(A) had an important governmental objective and that it was a reasonable fit between the objective and the conduct regulated. The primary objective is crime control and public safety. Armed unlawful aliens are a threat to immigration officers, they purposefully seek to avoid detection by often adopting false identities or staying outside the formal system of identification, and have already shown a willingness to disobey the United States’ law on immigration.

They conclude:

The present state of the law leaves us unable to conclude
with certainty whether aliens unlawfully present in the United
States are part of “the people” to whom Second Amendment
protections extend. Nonetheless, assuming that unlawful
aliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in
§ 922(g)(5) is a valid exercise of Congress’s authority.

They thus affirm the lower court’s ruling that § 922(g)(5)(A) is constitutional.

The opinion was written by Circuit Judge N. Randy Smith. He was joined in the opinion by Chief Judge Sidney Thomas and US District Judge Sharon Gleason who was sitting by designation.

The full text of the opinion is here.

A Win For Carry In The 9th Circuit

I know you are probably saying, “what the hell? The 9th Circuit?” It is true. Today the 9th Circuit issued its opinion in Young v. State of Hawaii. The 2-1 decision found that the Second Amendment does protect the right to openly carry a firearm in public for self-defense. You will remember in Peruta v. San Diego that the 9th Circuit ruling en banc said there was no constitutional right to carry concealed in public and that the Supreme Court refused to grant certiorari on appeal.

From Reuters:

The ruling issued by a three-judge panel on the 9th U.S. Circuit Court of Appeals, based in San Francisco, came a year after the U.S. Supreme Court declined to rule either way on the carrying of guns in public.

Two of the three 9th Circuit judges voted to reverse a decision by the U.S. District Court in Hawaii that state officials did not infringe on the rights of George Young, the plaintiff, in twice denying him a permit to carry a gun outside.

“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

 I would be extremely surprised if this decision does not go to an en banc hearing in the 9th Circuit.

I have not had time to read the whole decision but you can read it here.

Late Friday News No. 1 – From Calguns Foundation

The Calguns Foundation sent out an update on their appeal for certiorari to the US Supreme Court regarding California’s 10-day waiting period on Friday. Silvester et al v. Becerra challenges the 10-day waiting period for those individual who either holds a California issued carry permit or is an existing gun owner who holds a California certificate of eligibility. This case was a win at the District Court level but the 9th Circuit Court of Appeals overturned that decision. They bizarrely held that even existing firearms owners need a 10-day cooling off period.

From Calguns:

WASHINGTON,
D.C. (October 27, 2017) – A Second Amendment lawsuit out of California
is drawing attention at the Supreme Court and support from multiple
groups, said gun rights group The Calguns Foundation, which joined
Second Amendment Foundation and two individuals on a petition in
September seeking the Court’s review of a Ninth Circuit ruling that
upheld the state’s 10-day waiting period laws when they are enforced
against law-abiding gun owners after they pass a rigorous background
check.
Last
month, the respondent California Attorney General Xavier Becerra waived
his right to reply to the petition. But on September 29 the Supreme
Court ordered the State to reply; on October 24, the Court granted the
State of California an extension of time to file that reply, making the
new deadline December 1. Adding support for the case, multiple briefs
have been filed in support of the petitioners, encouraging the Supreme
Court to grant review and overturn the Ninth Circuit’s ruling.
In
a brief authored by preeminent constitutional scholars Ilya Shapiro and
Trevor Burrus, the Washington, D.C.-based think tank Cato Institute
presented a strong case for the Court to grant certiorari.  The brief
argues, among other things, that intermediate scrutiny “means something
different in almost every circuit [court of appeal] when applied to the
Second Amendment” and that the Ninth Circuit “abused petitioners’
fundamental rights by misapplying intermediate scrutiny.”
And
in another brief, former California Deputy Attorney General Raymond M.
DiGuiseppe argued on behalf of a coalition of Second Amendment advocacy
groups—including Firearms Policy Coalition, Firearms Policy Foundation,
Gun Owners of California, and Madison Society Foundation—that Supreme
Court review is necessary in this case “to reestablish the rule of law
and halt the trend of judicial obstructionism” that is “jeopardizing”
the constitutional protections of the Second Amendment. “This is not the
first time the Ninth Circuit has played ‘fast and loose’ with the
Court’s Second Amendment jurisprudence to fend off constitutional claims
– nor will it be the last if this Court does not step in,” the brief
said.
Attorneys
Douglas A. Applegate and George M. Lee of the San Francisco-based law
firm Seiler Epstein Ziegler & Applegate LLP filed a brief for the
Crime Prevention Research Center, a research and education organization
led by the renowned economist Dr. John Lott, arguing that “the standards
applied by the lower courts vary widely” and that “the Ninth Circuit
reversed the evidentiary findings of the trial court and supplanted the
evidence that the trial court received and weighed with its own
non-empirical views of what it thought was reasonable.”
“We
are pleased that other groups have recognized the serious flaws in the
Ninth Circuit’s approach,” explained Erik S. Jaffe, the petitioners’
Supreme Court counsel. “The results-driven analysis in the opinion below
not only does violence to the Second Amendment, but does violence to
the rule of law and respect for the courts. We are hopeful that the
Justices, whatever their views on the scope of the Second Amendment,
will recognize that the decision below is well out of bounds of any
reasonable reading of Supreme Court precedent or standards for
intermediate scrutiny and will take the necessary steps to ensure the
fair administration of justice in Second Amendment cases.”
In
2014, Federal District Court Judge Anthony W. Ishii—nominated to the
bench by then-President Clinton—held that California’s waiting period
laws were unconstitutional as applied to three categories of gun
purchasers after undertaking significant discovery, depositions, and a
three-day bench trial.
But
in 2016, the United States Court of Appeals for the Ninth Circuit
bizarrely ruled that even a person legally carrying a concealed handgun
as he buys another gun at retail, and who passes a further background
check, needs to be “cooled off” for another 10 days before exercising
his Second Amendment rights and taking possession of a
constitutionally-protected firearm.
Brandon
Combs, an individual plaintiff in the case as well as the executive
director of institutional plaintiff The Calguns Foundation, said that
the briefs made excellent arguments and further supported the petition
for review. “The Supreme Court has everything that it needs in a case
with an excellent trial record teed up here to save the Second Amendment
from hostile lower courts.”
“We are grateful to these amici
organizations and their counsel for their support of this case and
standing up for constitutional principles,” concluded Combs. 
A copy of the Silvester petition to the Supreme Court and the amicus briefs can be viewed or downloaded at https://www.calgunsfoundation.org/silvester.

9th Circuit Reverses District Court Victory In Sylvester v. Harris

A three judge panel of the 9th Circuit Court of Appeals reversed the District Court in the case of Sylvester et al v. Harris. The decision released today found that the 10-day waiting period for California holders of a license to carry, holders of a California Certificate of Eligibility, or have firearms registered with the State of California was presumptively constitutional under intermediate scrutiny. This reversed the decision by Judge Anthony W. Ishii of the US District Court for the Eastern District of California who had found in 2014 that this waiting period contravened the Second Amendment.

The 9th Circuit’s opinion written by Judge Mary Schroeder, a Carter appointee, has some real gems in it. Referring to the District Court’s opinion she wrote:

The district court dismissed the State’s argument. The
court thereby essentially discounted the dangers inherent in
the proliferation of guns, including guns suitable only for use
to injure others, such as Saturday night specials or large capacity
guns that have been used in mass shootings.

Not only did Judge Schroeder use a term that has racist origins – Saturday night specials – but she asserts that firearms with “large capacity” are only suitable for killing or injuring others. No bias there, is there?

Judge Schroeder then continues later in her opinion to assert that firearms buyers in the 18th and 19th centuries had to wait a long period of time to receive their firearms. Thus, when examined in that context, a waiting period of (hopefully only) 10 days was no big deal.

There is, moreover, nothing new in having to wait for the
delivery of a weapon. Before the age of superstores and
superhighways, most folks could not expect to take
possession of a firearm immediately upon deciding to
purchase one. As a purely practical matter, delivery took
time. Our 18th and 19th century forebears knew nothing
about electronic transmissions. Delays of a week or more
were not the product of governmental regulations, but such
delays had to be routinely accepted as part of doing business.

It therefore cannot be said that the regulation places a
substantial burden on a Second Amendment right.
Intermediate scrutiny is appropriate.

As the announcer in the infomercial says, “But wait! There’s More”.

The district court reasoned that a cooling-off period
would not have any deterrent effect on crimes committed by
subsequent purchasers, because if they wanted to commit an
impulsive act of violence, they already had the means to do
so. This assumes that all subsequent purchasers who wish to
purchase a weapon for criminal purposes already have an
operable weapon suitable to do the job.



The district court’s assumption is not warranted. An
individual who already owns a hunting rifle, for example,
may want to purchase a larger capacity weapon that will do
more damage when fired into a crowd. A 10-day cooling-off
period would serve to discourage such conduct and would
impose no serious burden on the core Second Amendment
right of defense of the home identified in
Heller. 554 U.S. at
628.

Obviously Judge Schroeder is ignorant of the damage that could be done by an ordinary shotgun like the Remington 870 when fired into a crowd. If you added something like the Paradigm Gator Shotgun Spreader choke and a shoulder bag full of #4 buck then you would have real carnage.

Chief Judge Sidney Thomas, a Clinton appointee and the architect of the en banc hearing in the Perutta case, wrote a concurring opinion agreeing with the decision but saying that waiting periods were presumptively lawful. Obama appointee Judge Jacqueline H. Nguyen joined in unanimous decision.

Brandon Combs, executive director of the Calguns Foundation, released a strongly worded statement on the decision. Combs, in addition to his position with Calguns, is one of the plaintiffs in the case.

SAN FRANCISCO (December 14, 2016) – In response to today’s Ninth Circuit Court of Appeals decision overturning the trial court in the case of Jeff Silvester, et al., v. Attorney General Kamala Harris, a federal Second Amendment civil rights lawsuit challenging the State of California’s 10-day waiting period laws, Brandon Combs, executive director of The Calguns Foundation, has released the following statement:


“Today, this panel of the Ninth Circuit Court of Appeals has proven to be more interested in their own policy preferences than the Constitution and the text, history, and tradition of the Second Amendment.


In its decision, the Court bizarrely ruled that even a person legally carrying a concealed weapon as he buys another gun at retail needs to be ‘cooled off’ for 10 days before taking possession of another constitutionally-protected firearm.


That holding is not even rational, much less should it survive any kind of heightened constitutional scrutiny compelled by the Supreme Court’s Heller and McDonald opinions.


After undertaking significant discovery, depositions, and a three-day bench trial, Federal District Court Judge Anthony W. Ishii issued his Findings of Fact and Conclusions of Law, which held the State of California’s 10-day waiting period laws to be irrational and unconstitutional as applied to three categories of gun purchasers.


Today’s opinion is but one of a growing string of wrongly-decided Second Amendment cases and serves to underscore that, if the fundamental, individual, Second Amendment right to keep and bear arms is to survive as something more than a second-class right, the Supreme Court will need to say so once more.


This fight is far from over. Our legal team is hard at work exploring all legal options to advance this case and the Second Amendment right to keep and bear arms.”


Silvester v. Harris is supported by civil rights organizations The Calguns Foundation (Sacramento, CA) and Second Amendment Foundation (Bellevue, WA).

Decisions like this by the 9th Circuit illustrate just how much the lower courts have blatantly ignored the Supreme Court’s decisions in both Heller and McDonald. It also illustrates the need for a originalist in the mold of Justice Scalia to fill his shoes on the Supreme Court. Perhaps when we get one, two, or three new justices on the Supreme Court appointed by a President Trump then nonsense decisions like this one out of the 9th Circuit will be slapped down in 6-3 or 7-2 decisions.

9th Circuit Peruta Decision Boiled Down To The Essentials

Today the 9th Circuit Court of Appeals released their opinion in Peruta v. County of San Diego as well as Richards v. Prieto. The court sitting en banc said to California residents that unless you were rich and famous and could afford a substantial bribe campaign contribution to your local sheriff or were a Federal judge protected by the US Marshals Service, then you had no Second Amendment right to carry concealed. In essence, the court said you were on your own and if you wanted to carry a firearm concealed for self-defense, then you were just shit out of luck.

In the summary they said:

The en banc court held that the history relevant to both
the Second Amendment and its incorporation by the
Fourteenth Amendment lead to the same conclusion: The
right of a member of the general public to carry a concealed
firearm in public is not, and never has been, protected by the
Second Amendment. Therefore, because the Second
Amendment does not protect in any degree the right to carry
concealed firearms in public, any prohibition or restriction a
state may choose to impose on concealed carry — including a requirement of “good cause,” however defined — is
necessarily allowed by the Amendment. The en banc court
stated that there may or may not be a Second Amendment
right for a member of the general public to carry a firearm
openly in public, but the Supreme Court has not answered
that question.

You may remember that a regular three-judge 9th Circuit panel had found that the Second Amendment does indeed convey a right to carry. Chief Judge Sidney Thomas, a Clinton appointee, had been in the minority in that decision and worked to get it reheard en banc.

Today he was in the 7-4 majority with the opinion written by Judge William Fletcher, a Clinton appointee. Chief Judge Thomas was also joined in the majority by Judge Harry Pregerson, a 93-year old Carter appointee; Judge Susan Graber, a Clinton appointee; Judge Margaret McKeown, a Clinton appointee; Judge Richard Paez, a Clinton appointee; and Judge John Owens, a Obama appointee.

Voting for the Second Amendment right to carry were Judge Consuelo Callahan, a George W. Bush appointee; Judge Barry Silverman, a Clinton appointee; Judge Carlos Bea, a George W. Bush appointee; and Judge N. Randy Smith, a George W. Bush appointee.

I applaud Judge Silverman for bucking the trend of Democratic appointees who voted against the Second Amendment. Perhaps the judge was familiar with the works of the English philosopher John Locke who had greatly influenced our founding fathers. In Locke’s Second Treatise Concerning Civil Government, Locke said, in so many words, that the first law of nature is a right to self-defense. In that view, it could be argued that today’s 9th Circuit decision was a crime against the laws of nature.

I am in agreement with Sebastian that it would be very dangerous for the plaintiffs to appeal this ruling to the US Supreme Court as the Court stands now. I have an interview for the Polite Society Podcast scheduled for Friday with Alan Gottlieb of the Second Amendment Foundation. I’m sure that will come up during the interview. I will post more on that tomorrow afternoon.

9th Circuit Orders En Banc Rehearing In Peruta And Richards Cases

Ninth Circuit Court of Appeals Chief Judge Sidney Thomas is getting his wish:  an en banc rehearing of the Peruta and Richards cases. Judge Thomas was the sole dissenter in those cases. The only way to reverse the precedent in those cases was to have it reversed by the US Supreme Court or through an en banc rehearing of the case.
When an unnamed judge on the Ninth Circuit – widely assumed to be Judge Thomas – called sua sponte for an en banc rehearing of the case, it wasn’t good news. Both the plaintiffs and the defendants were required to submit briefs arguing either for or against an en banc rehearing. The decision on whether to call for the rehearing was dependent upon the vote of the majority of the active judges on the circuit. Given the overall liberal nature of this circuit, I guess we should not be surprised by the rehearing.

Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Federal Rule of Appellate Procedure
35(a) and Circuit Rule 35-3. The three-judge panel opinion and order denying
motions to intervene shall not be cited as precedent by or to any court of the Ninth
Circuit.

The panel sitting on the rehearing of the case will be Chief Judge Thomas, a Clinton appointee, and 10 other judges picked at random. In all other circuits, all active judges would sit for the en banc rehearing. However, given the number of judges in the Ninth Circuit, they have had to adopt different procedures.

The question on whether California Attorney General Kamala Harris and the State of California will be allowed to intervene in the case is still up in the air.

All in all, this isn’t good news for carry rights in California.

9th Circuit: “Good cause” Violates Second Amendment

Great news out of the 9th Circuit Court of Appeals.

In the case of Peruta v. San Diego, the court found that requiring “good cause” to get a carry permit violates the Second Amendment. The court said the state of California can decide what training and background checks are required as well as the manner of carry. However, they can’t preclude the vast majority of Californians from exercising their right to carry.


Dave Kopel has more here at the Volokh Conspiracy page of the Washington Post.

Here is some background on the original case, the decision by District Court Judge Irma Gonzalez, and the decision to appeal the case to the 9th Circuit. The case was appealed to the 9th Circuit in late 2010 which shows just how long it takes to move Second Amendment cases forward.

Here Is One 9th Circuit Decision I Hope Isn’t Overturned

The 9th Circuit Court of Appeals has a well-deserved reputation as being the most overturned circuit in the nation. This is usually due to their “out-there” opinions. However, the Supreme Court accepted an appeal by the City of Los Angeles of a case where the 9th Circuit said the police search warrant for weapons was so broad as to be unconstitutional. This case, Millender v. County of Los Angeles, et al., involved a general search warrant that specified the seizure of “all handguns, rifles or shotguns of any caliber, or any firearms capable of firing ammunition…” even though the police knew they were looking for one specific firearm.

The NRA and CRPA had filed an amicus brief in this case in support of Millender. Below is the release from attorney Chuck Michel which give more on this case. As I said in the title, this is one case that I hope is not overturned on appeal.

The Fourth Amendment guarantees our right to not be subjected to search and seizure under a “general” search warrant (i.e., a warrant not based on probable cause and not particularly describing the place to be searched and the person or thing to be seized).

Firearms are generally lawful to possess, and usually may not be seized without probable cause that a specific firearm was used in a crime. On August 24, 2010, the Ninth Circuit Court of Appeals in Millender v. County of Los Angeles, et al. (07-55518), confirmed that a general search warrant requesting the seizure of “all handguns, rifles or shotguns of any caliber, or any firearms capable of firing ammunition…” was unconstitutional when the police who sought the warrant were aware they were actually searching for just one specific firearm.

The National Rifle Association (NRA) and the California Rifle and Pistol Association Foundation (CRPAF) argued this point in an amicus (friend of the court) brief filed in the Ninth Circuit Court of Appeals on behalf of the Mrs. Millender. A copy of the brief, along with the opinion, other case related briefs, and memorandum analyzing the opinion is posted at http://michellawyers.com/millendervlosangeles.

Following the Ninth Circuit’s Millender decision, defendant County of Los Angeles sought review by the United States Supreme Court. On June 27, 2011, the Supreme Court agreed to review the case, and to address the question of whether law enforcement is entitled to qualified immunity against a civil rights law suit when a judge has signed off on the warrant – even when the officers seized property (i.e. firearms) unrelated to the case (and the specific firearm) they are investigating. The case will be heard by the Supreme Court next year. NRA and CRPAF will weigh-in again through an amicus brief at that time.

Far too often police seize entire firearms collections even when most of those firearms are not alleged as part of any criminal offense. In fact, to get to large gun collections local police even resort to “stinging” gun collectors with enticing too-good-to-be-true firearm deals that often involve grey areas of the law, making inadvertent violations of the law common. Some police are politically motivated to inflate statistics of the number of guns seized in order to justify increased funding for their efforts. These seizures often result in damage to the firearms, and inevitably cost their owners expenses and legal fees to get the firearms back.

The Millender case involved a domestic assault between Mr. Bowen and Mrs. Kelly. Bowen threatened Kelly using a specifically identified sawed-off shotgun. Kelly called the police. Police ran Bowen’s record and discovered he was a felon. Police then tracked down an address purported to be Bowen’s residence, and drafted a search warrant that included a request to seize all firearms and ammunition. Police included these general requests despite having a picture of the specific sawed-off shotgun Bowen allegedly used in the assault.

At 5 a.m. the Los Angeles County Sheriff’s Department SWAT team served the warrant at the address of Bowen’s foster mother, Mrs. Millender (law enforcement knew that this was her residence, not Bowen’s). Police broke in through her front security door and a front window. Bowen was not there, but law enforcement nonetheless seized from Mrs. Millender a 12-gauge “Mossberg” shotgun with a wooden stock that looked nothing like the sawed-off shotgun they were after, along with a box of .45 caliber ammunition.

Bowen was found the following day hiding under a bed in a motel.

The District Court held that the police had qualified immunity from the damages sought in the civil rights case because of the supposed validity of the warrant.

The Ninth Circuit Court of Appeals reversed, holding that the warrant was over-broad, especially given law enforcement’s knowledge of the specific firearm Bowen used, and considering the total lack of any gang related evidence. Due to the extreme degree in which the warrant was unconstitutional, the Court of Appeals held that the officers were not entitled to qualified immunity and could be sued for damages for violating the Millenders’ civil rights.

H/T Tom Gresham