Judge Sidney Thomas Archives -

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.

From the court’s order:

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.