After Judge Benitez ruled against the State of California on their magazine ban in Duncan v. Bonta, the state filed an emergency motion for a stay pending appeal with the 9th Circuit Court of Appeals. Normally this would have gone to a three judge panel for adjudication. But then again this is the 9th Circuit we are talking about.
Instead it is going to the original en banc panel as a “comeback” which they then granted a temporary stay of Judge Benitez’s ruling. This is the same panel that had ruled against Duncan in 2021. It was appealed to the Supreme Court. After they ruled on Bruen, the 9th Circuit ruling was vacated and the case was remanded to them for proceedings consistent with that decision. They punted it to the District Court, Judge Benitez ruled in favor of Duncan again, and now it is back in the 9th Circuit.
The en banc panel granted the emergency motion for a stay pending appeal. As the dissents make clear, this was highly unusual. Judge Patrick Bumatay said the 9th Circuit should have handled this like any other appeal but didn’t because it involved the Second Amendment. He went on to say that to his knowledge, “no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter.”
The dissent by Judge Lawrence VanDyke was brutal and should be read in it entirety. Start on page 5 of the decision embedded below. VanDyke had a very unusual background before joining this court. He was the Assistant Solicitor General of Texas and then the Solicitor General for both Montana and Nevada respectively. VanDyke starts off saying he agreed with Judge Bumatay’s concern about the irregularities with the en banc panel taking the case directly. The snark is strong with Judge VanDyke when he said the original panel would only give up control of the case “when it is pried from its cold, dead fingers.”
VanDyke makes the comparison with how the 9th Circuit handles this case with how many courts handled abortion cases pre-Dobbs. The normal rules were tossed out along with the norms of decision making. He called it “abortion distortion” and says the 9th Circuit suffers from the same malady with regard to Second Amendment cases.
Every court has its own rules including deadlines for when an appeal can be filed or an appeals court judge can request an en banc review of the original three judge panel’s decision. Everyone is supposed to follow these rules. That is except the 9th Circuit with regard to 2A cases. After the original three judge panel found in favor of Duncan in 2020, a 9th Circuit judge made the request for an en banc review. That is allowed under the rules but there are deadlines and the deadline for making the request was missed. As VanDyke notes, either the case should have stopped there or the entire court should have made the decision to change the deadline. Neither was done and a backdoor agreement was reached to bring up Duncan to the en banc panel. This was denied to two other cases including one involving the death penalty.
Judge VanDyke said the process used was illegitimate from the start and I would agree. We as a nation are supposed to operate under the rule of law. However, when the rules are freely ignored by the 9th Circuit, or any court for matter, in order to get to the outcome that is desired then the whole concept of the rule of law is brought into question.
H/T Todd V.
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