Peruta v San Diego

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SCOTUS Denies Cert In Peruta Case

June 26, 2017 by 1 Comment

Damn, damn, damn. I thought the Peruta case had a chance to bring carry before the Supreme Court. In the orders released this morning, the Supreme Court denied certiorari in the case of Peruta et al v. California et al.

Justice Thomas and Justice Gorsuch dissented in this denial of cert. Justice Thomas wrote a strong dissent with which Justice Gorsuch joined. I am putting the full dissent below. I will be adding comments after I have had time to read the whole thing.

The addition to the Court of Justice Gorsuch was good. I just wish there were more like him and Justice Thomas who care about both the precedents of Heller and McDonald as well as the Second Amendment.

1
Cite as: 582 U. S. ____ (2017)


THOMAS
, J., dissenting


SUPREME COURT OF THE UNITED STATES
EDWARD PERUTA,
ET
AL
.
v.
CALIFORNIA,
ET AL


.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


No. 16–894. Decided June 26, 2017


The petition for a writ of certiorari is denied.


JUSTICE
THOMAS
, with whom JUSTICE
GORSUCH
joins,
dissenting from the denial of certiorari.


The Second Amendment to the Constitution guarantees
that “the right of the people to keep and bear Arm[s] shall
not be infringed.” At issue in this case is whether that
guarantee protects the right to carry firearms in public for
self-defense. Neither party disputes that the issue is one
of national importance or that the courts of appeals have
already weighed in extensively. I would therefore grant
the petition for a writ of certiorari.


I


California generally prohibits the average citizen from
carrying a firearm in public spaces, either openly or con­
cealed. With a few limited exceptions, the State prohibits
open carry altogether. Cal. Penal Code Ann. §§25850,
26350 (West 2012). It proscribes concealed carry unless a
resident obtains a license by showing “good cause,” among
other criteria, §§26150, 26155, and it authorizes counties
to set rules for when an applicant has shown good cause,
§26160.


In the county where petitioners reside, the sheriff has
interpreted “good cause” to require an applicant to show
that he has a particularized need, substantiated by docu­mentary evidence, to carry a firearm for self-defense. The
sheriff ’s policy specifies that “concern for one’s personal
safety” does not “alone” satisfy this requirement.
Peruta
v.
County of
San Diego
, 742 F. 3d 1144, 1148 (CA9 2014) (internal quotation marks omitted). Instead, an applicant
must show “a set of circumstances that distinguish the
applicant from the mainstream and cause him to be placed
in harm’s way.”
Id.
, at 1169 (internal quotation marks
and alterations omitted). “[A] typical citizen fearing for
his personal safety—by definition—cannot distinguish
himself from the mainstream.”
Ibid.
(emphasis deleted;
internal quotation marks and alterations omitted). As a
result, ordinary, “law-abiding, responsible citizens,”
District of Columbia
v.
Heller
, 554 U. S. 570, 635 (2008), may
not obtain a permit for concealed carry of a firearm in
public spaces.


Petitioners are residents of San Diego County (plus an
association with numerous county residents as members)
who are unable to obtain a lic
ense for concealed carry due
to the county’s policy and, because the State generally
bans open carry, are thus unable to bear firearms in public
in any manner. They sued under Rev. Stat. §1979, 42
U.
S. C. §1983, alleging that this near-total prohibition on
public carry violates their Second Amendment right to
bear arms. They requested declaratory and injunctive
relief to prevent the sheriff from denying licenses based on
his restrictive interpretation
of “good cause,” as well as
other “relief as the Court deems just and proper.” First
Amended Complaint in No. 3:09–cv–02371, (SD Cal.)
¶¶149, 150, 152. The District Court granted respondents’
motion for summary judgment, and petitioners appealed
to the Ninth Circuit.


In a thorough opinion, a panel of the Ninth Circuit
reversed. 742 F. 3d 1144. The panel examined the consti­
tutional text and this Court’s precedents, as well as histor­ical sources from before the founding era through the end
of the 19th century.
Id.,
at 1150–1166. Based on these
sources, the court concluded that “the carrying of an oper­able handgun outside the home for the lawful purpose of
self-defense . . . constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.”
Id.
, at 1166. It thus
reversed the District Court and held that the sheriff ’s
interpretation of “good cause” in combination with the
other aspects of the State’s
regime violated the Second
Amendment’s command that a State “permit
some form
of
carry for self-defense outside the home.”
Id.,
at 1172.


The Ninth Circuit
sua sponte
granted rehearing en banc
and, by a divided court, reversed the panel decision. In
the en banc court’s view, because petitioners specifically
asked for the invalidation of the sheriff ’s “good cause”
interpretation, their legal challenge was limited to that
aspect of the applicable regulatory scheme. The court thus
declined to “answer the question of whether or to what
degree the Second Amendment might or might not protect
a right of a member of the general public to carry firearms
openly in public.”
Peruta
v.
County of San Diego
, 824
F.
3d 919, 942 (2016). It instead held only that “the Sec­
ond Amendment does not preserve or protect a right of a
member of the general public to carry
concealed
firearms
in public.”
Id.,
at 924 (emphasis added).


II


We should have granted certiorari in this case. The
approach taken by the en banc court is indefensible, and
the petition raises important questions that this Court
should address. I see no reason to await another case.


A


The en banc court’s decision to limit its review to
whether the Second Amendment protects the right to
concealed carry—as opposed to
the more general right to
public carry—was untenable. Most fundamentally, it was
not justified by the terms of the complaint, which called
into question the State’s regulatory scheme as a whole.
See First Amended Complaint ¶63 (“Because California
does not permit the open carriage of loaded firearms, concealed carriage with a [concealed carry] permit is the
only means by which an individual can bear arms in pub­
lic places”);
id.
, ¶74 (“States may not completely ban the
carrying of handguns for self-defense”). And although the
complaint specified the remedy that intruded least on the
State’s overall regulatory regime—declaratory relief and
an injunction against the sheriff ’s restrictive interpretation of “good cause”—it also requested “[a]ny further relief
as the Court deems just and proper.”
Id.,
¶152.


Nor was the Ninth Circuit’s approach justified by the
history of this litigation. The District Court emphasized
that “the heart of the parties’ dispute” is whether the
Second Amendment protects “the right to carry a loaded
handgun in public, either openly or in a concealed man­
ner.”
Peruta
v.
County of San Diego
, 758 F. Supp. 2d 1106,
1109 (SD Cal. 2010). As the Ninth Circuit panel pointed
out, “[petitioners] argue that the San Diego County policy
in light of the California licensing scheme
as a whole
violates the Second Amendment because it precludes a
responsible, law-abiding citizen from carrying a weapon in
public for the purpose of lawful self-defense in
any
man­
ner.” 742 F. 3d, at 1171. The panel further observed that
although petitioners “focu[s]” their challenge on the “li­
censing scheme for concealed carry,” this is “for good
reason: acquiring such a license is the only practical ave­nue by which [they] may come lawfully to carry a gun for
self-defense in San Diego County.”
Ibid.
Even the en banc
court acknowledged that petitioners “base their argument
on the entirety of California’s statutory scheme” and “do
not
contend that there is a free-standing Second Amend­
ment right to carry concealed firearms.” 824 F. 3d, at 927.


B


Had the en banc Ninth Circuit answered the question
actually at issue in this case, it likely would have been
compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects
the right to carry firearms in public in some fashion. As
we explained in
Heller
, to “bear arms” means to “
‘wear,
bear, or carry upon the person or in the clothing or in a
pocket, for the purpose of being armed and ready for offen­sive or defensive action in a case of conflict with another
person.’
” 554 U. S., at 584 (quoting
Muscarello
v.
United
States
, 524 U. S. 125, 143 (1998) (GINSBURG
, J.,
dissent­ing); alterations and some internal quotation marks omit­
ted). The most natural reading of this definition encom­
passes public carry. I find it extremely improbable that
the Framers understood the Second Amendment to protect
little more than carrying a gun from the bedroom to the
kitchen. See
Drake
v.
Filko
, 724 F. 3d 426, 444 (CA3
2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of the [
Heller
]
Court’s holding that the verbs codified distinct rights, but
also would be awkward usage given the meaning assigned
the terms by the Supreme Court”);
Moore
v.
Madigan
, 702
F. 3d 933, 936 (CA7 2012) (similar). already suggested that the Second Amendment protects
the right to carry firearms in public in some fashion. As
we explained in
Heller
, to “bear arms” means to “
‘wear,
bear, or carry upon the person or in the clothing or in a
pocket, for the purpose of being armed and ready for offen­sive or defensive action in a case of conflict with another
person.’
” 554 U. S., at 584 (quoting
Muscarello
v.
United
States
, 524 U. S. 125, 143 (1998) (GINSBURG
, J.,
dissent­ing); alterations and some internal quotation marks omit­
ted). The most natural reading of this definition encom­
passes public carry. I find it extremely improbable that
the Framers understood the Second Amendment to protect
little more than carrying a gun from the bedroom to the
kitchen. See
Drake
v.
Filko
, 724 F. 3d 426, 444 (CA3
2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of the [
Heller
]
Court’s holding that the verbs codified distinct rights, but
also would be awkward usage given the meaning assigned
the terms by the Supreme Court”);
Moore
v.
Madigan
, 702
F. 3d 933, 936 (CA7 2012) (similar).
The relevant history appears to support this under­
standing. The panel opinion below pointed to a wealth of
cases and secondary sources from England, the founding
era, the antebellum period, and Reconstruction, which
together strongly suggest that the right to bear arms
includes the right to bear arms in public in some manner.
See 742 F. 3d, at 1153–1166 (canvassing the relevant
history in detail); Brief for Na
tional Rifle Association as
Amicus Curiae
6–16. For example, in
Nunn
v.
State
, 1 Ga.
243 (1846)—a decision the
Heller
Court discussed exten­sively as illustrative of the proper understanding of the
right, 554 U. S., at 612—the Georgia Supreme Court
struck down a ban on open carry although it upheld a ban
on concealed carry. 1 Ga., at 251. Other cases similarly
suggest that, although some regulation of public carry is already suggested that the Second Amendment protects
the right to carry firearms in p
ublic in some fashion. As
we explained in
Heller
, to “bear arms” means to “
‘wear,
bear, or carry upon the person or in the clothing or in a
pocket, for the purpose of being armed and ready for offen­sive or defensive action in a case of conflict with another
person.’
” 554 U. S., at 584 (quoting
Muscarello
v.
United
States
, 524 U. S. 125, 143 (1998) (GINSBURG
, J.,
dissent
ing); alterations and some internal quotation marks omit­
ted). The most natural reading of this definition encom
passes public carry. I find it extremely improbable that
the Framers understood the Second Amendment to protect
little more than carrying a gun from the bedroom to the
kitchen. See
Drake
v.
Filko
, 724 F. 3d 426, 444 (CA3
2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’
arms solely within one’s home not only would conflate
‘bearing’ with ‘keeping,’ in derogation of the [
Heller
]
Court’s holding that the verbs codified distinct rights, but
also would be awkward usage given the meaning assigned
the terms by the Supreme Court”);
Moore
v.
Madigan
, 702
F. 3d 933, 936 (CA7 2012) (similar).


The relevant history appears to support this under­
standing. The panel opinion below pointed to a wealth of
cases and secondary sources from England, the founding
era, the antebellum period, and Reconstruction, which
together strongly suggest that the right to bear arms
includes the right to bear arms in public in some manner.
See 742 F. 3d, at 1153–1166 (canvassing the relevant
history in detail); Brief for National Rifle Association as
Amicus Curiae
6–16. For example, in
Nunn
v.
State
, 1 Ga.
243 (1846)—a decision the
Heller
Court discussed exten­sively as illustrative of the proper understanding of the
right, 554 U. S., at 612—the Georgia Supreme Court
struck down a ban on open carry although it upheld a ban
on concealed carry. 1 Ga., at 251. Other cases similarly
suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is
not. See,
e.g., State
v.
Reid
, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).


Finally, the Second Amendment’s core purpose further
supports the conclusion that the right to bear arms ex­
tends to public carry. The Court in
Heller
emphasized
that “self-defense” is “the
central component
of the [Second
Amendment] right itself.” 554 U. S., at 599. This purpose
is not limited only to the home, even though the need for
self-defense may be “most acute” there.
Id.,
at 628. “Self­
defense has to take place wherever the person happens to
be,” and in some circumstances a person may be more
vulnerable in a public place than in his own house. Volokh, Implementing the Right To Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. Rev. 1443, 1515 (2009).


C


Even if other Members of the Court do not agree that
the Second Amendment likely protects a right to public
carry, the time has come fo
r the Court to answer this
important question definitively
. Twenty-six States have
asked us to resolve the question presented, see Brief for
Alabama et al. as
Amici Curiae
, and the lower courts have
fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided
cases regarding the ability of States to regulate the public
carry of firearms. Those decisions (plus the one below)
have produced thorough opinions on both sides of the
issue. See
Drake
, 724 F. 3d 426, cert. denied
sub nom.
Drake
v.
Jerejian
, 572 U. S. ___ (2014); 724 F. 3d,
at 440
(Hardiman, J., dissenting);
Woollard
v.
Gallagher
, 712
F.
3d 865 (CA4), cert. denied, 571 U. S. ___ (2013);
Kachalsky
v.
County of Westchester
, 701 F. 3d 81 (CA2 2012),
cert. denied
sub nom
.
Kachalsky
v.
Cacace
, 569 U. S. ___
(2013);
Madigan
, 702 F. 3d 933;
id.,
at 943 (Williams, J.,
dissenting);
Commonwealth
v.
Gouse
, 461 Mass. 787, 800–
802, 965 N. E. 2d 774, 785–786 (2012);
Williams
v.
State
,
417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011);
Mack
v.
United States
, 6 A. 3d 1224, 1236 (D. C. 2010). Hence, I do
not see much value in waiting for additional courts to
weigh in, especially when constitutional rights are at
stake.


The Court’s decision to deny certiorari in this case re­
flects a distressing trend: the treatment of the Second
Amendment as a disfavored right. See
Friedman
v.
High
–
land Park
, 577 U. S. ___, ___ (2015) (THOMAS
, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s
refusal to review a decision that flouts two of our Second
Amendment precedents stands in marked contrast to the
Court’s willingness to summarily reverse courts that
disregard our other constitutional decisions”);
Jackson
v.
City and County of San Francisco
, 576 U. S. ___, ___
(2015) (same). The Constitution does not rank certain
rights above others, and I do not think this Court should
impose such a hierarchy by selectively enforcing its pre­ferred rights.
Id.
, at ___ (slip op., at 1) (“Second Amend­ment rights are no less protected by our Constitution than
other rights enumerated in that document”). The Court
has not heard argument in a Second Amendment case in
over seven years—since March 2, 2010, in
McDonald
v.
Chicago
, 561 U. S. 742. Since that time, we have heard
argument in, for example, roughly 35 cases where the
question presented turned on the meaning of the First
Amendment and 25 cases that turned on the meaning of
the Fourth Amendment. This discrepancy is inexcusable,
especially given how much
less developed our jurispru­dence is with respect to the Second Amendment as com­
pared to the First and Fourth Amendments.


For those of us who work in marbled halls, guarded
constantly by a vigilant and dedicated police force, the
guarantees of the Second Amendment might seem anti­quated and superfluous. But the Framers made a clear
choice: They reserved to all Americans the right to bear
arms for self-defense. I do not think we should stand by
idly while a State denies its citizens that right, particularly
when their very lives may depend on it. I respectfully
dissent.

–

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9th Circuit Peruta Decision Boiled Down To The Essentials

June 9, 2016 by 3 Comments

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.

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

March 27, 2015 by 6 Comments
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.

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Sua Sponte Call For Peruta En Banc Hearing

December 4, 2014 by 5 Comments

Under the General Orders of the 9th Circuit Court of Appeals, any judge in the circuit may call sua sponte for an en banc rehearing of a case. What this means translated into ordinary language, any judge, active or senior, within the 9th Circuit, can make the call for a en banc rehearing on his own behalf without any request from either the plaintiff or defendant.

And this is just what has happened in the case of Peruta v. San Diego. The parties involved have been ordered to file briefs within 21 days saying why or why not this case should be given an en banc rehearing. Amicus briefs may also be submitted within this 21 days period.

Professor Eugene Volokh, while surprised that this happened with Peruta, notes the reasoning behind this call.

This sort of “sua sponte” call for rehearing en banc, even without a petition, is a pretty well-settled procedure, though not one that’s often used. Opinions of three-judge panels in the Ninth Circuit are binding on all future three-judge panels, and can only be reversed by en banc rehearing (or, of course, by the Supreme Court). As a result, even if the parties are content with the result of an opinion, and don’t seek rehearing, each judge has his own interest in the precedents set by his colleagues. Judges are therefore allowed to seek en banc rehearing (which will be granted if a majority of active judges agree to rehear the case), regardless of whether the parties file petitions for such rehearing.

Given the strong Second Amendment rationale in the Peruta decision by Judge O’Scannlain, I’m guessing some of the more liberal judges on the 9th Circuit don’t want to be bound by it. After all, the 9th Circuit has a reputation as the most liberal circuit. Only 18 out of the 38 current active judges – those not having senior status – were appointed by Republican presidents.

Voting on whether or not to grant an en banc rehearing will be by all of the active judges on the 9th Circuit. If a majority approves the rehearing then, under 9th Circuit rules, a panel consisting of the Chief Judge and 10 other active judges will sit en banc and rehear the case. The 10 judges are chosen at random from among the active judges on the Circuit. The Chief Judge as of December 1st is Judge Sidney Thomas – the dissenter in the Peruta case and a Bill Clinton appointee from Montana.

I should emphasize that the Peruta case hasn’t gone to an en banc rehearing yet but that it could go to one if a majority of the judges call for it. We shall see.

H/T Sebastian

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Peruta Case Isn’t Done Yet

May 21, 2014 by 3 Comments

On May 1st, the 9th Circuit Court of Appeals ordered Sheriff William Gore to respond within 14 days to two questions. First, did the sheriff have a position on whether California AG Kamala Harris should be allowed to intervene in the case? Second, did he consider this case moot as he had starting issuing carry permits on a shall-issue basis?

Gore responded on Wednesday, May 14th in a letter signed by the Senior Deputy County Counsel James Chapin that was sent to the Clerk of Court. The letter said:

The Court has requested the position of Appellee William Gore on the
pending motions to intervene and a response to the suggestion that this case is
moot. Appellee responds as follows:

Motions to Intervene.

Appellee believes that the Attorney General is the appropriate intervenor in
this case because the panel opinion finds California’s legislative scheme regarding
the carrying of handguns unconstitutional. Appellee requests that the Court grant
the Attorney General’s Motion to Intervene. Appellee takes no position on other
intervenors.

Mootness.

This case is not moot. Appellee has not changed his policy or procedures for
the issuance of concealed carry licenses. All current applications that do not meet
the existing policy are being held without action, pending final direction from the
Court or the Legislature.

Intervenor status was also sought by the Brady Campaign. An en banc review of the Peruta decision is being sought by Harris, the Brady Campaign, the California Peace Officers Association, and the California Police Chiefs Association.

As attorney Chuck Michel made clear back in March, both Gore and the plaintiffs had asked Harris to participate in the case she declined. It was only after Peruta was decided in favor of the plaintiffs did she try to intervene. I guess she never thought the 9th Circuit would decide in favor of the plaintiffs and in such a forceful decision.

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Peruta Mandate Stayed

March 3, 2014 by 5 Comments

Late Friday, the 9th Circuit Court of Appeals stayed its mandate in Peruta v. San Diego at the request of the Brady Campaign and Kamala Harris. They had requested an extension of time to file an appeal, intervenor status, and a stay of the mandate. They were given the extension of time and the stay but not the intervenor status. While they may get it later, it was not granted at this time.

From the court’s order:

The Brady Campaign to Prevent Gun Violence’s Motion to Extend Time for
Filing a Petition for Rehearing En Banc and Stay the Issuance of the Mandate, and
Proposed Intervenor State of California’s Motion to Extend Time to File a Petition
for Rehearing En Banc and Stay Issuance of the Mandate, both filed with this
Court on February 27, 2014, are GRANTED. Any proposed petitions for rehearing
filed with this Court by February 27, 2014 will be considered timely if this Court
grants the petitioners’ concurrently filed motions to intervene. This order does not
extend the time for filing petitions for rehearing for any petitioner who did not
move to intervene by February 27, 2014.

Submission with respect to the pending motions to intervene is deferred
pending further order of the Court. Issuance of the mandate is stayed pending further order of the Court.

I don’t know if the plaintiffs are allowed to file an objection to the motions to intervene but would certainly expect it if allowed. There remains the question of what standing either the Brady Campaign or Kamala Harris have to intervene and to appeal. Harris, you may recall, declined to be a part of a similar case.

H/T Alphecca

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Great Response To California AG Harris’ Attempt To Appeal Peruta

March 3, 2014 by 5 Comments

Attorney Chuck Michel is the West Coast attorney for the National Rifle Association and was the trial counsel in Peruta v. County of San Diego. He issued an interesting statement on Friday regarding the attempt by California Attorney General Kamala Harris to intervene and appeal the case.

Michel notes that when the Attorney General was named in other suits regarding carry, she successfully argued that the power to administer carry licenses lay with the sheriffs and not her. In the statement below, he uses her own language in official filings to impeach her efforts to intervene in the Peruta case.

From the statement:

The Attorney General’s office was repeatedly invited to participate in this case both by Sheriff Gore’s attorney, and by the plaintiffs. The Attorney General declined to participate in the case, just as she has refused to get involved in similar cases challenging policies in other cities and counties that refused to accept self-defense as justification to get a license to carry a firearm in public to defend yourself and your family.

In fact, when the Attorney General’s office was named as a defendant in some of those cases, it has successfully moved to be dismissed from the cases because the court has accepted the Attorney General’s argument that she is not the official vested with the authority of the state when it comes to administering these licenses – the Sheriff is.

Excerpts from Mehl:

1) “Since only sheriffs and chiefs of police have authority under the CCW statutes to grant, deny or revoke licenses, Applicants cannot establish Article III jurisdiction over the Attorney General with regard to their facial challenges to the validity of the statutes or for review of the Sheriff’s refusal to grant their CCW licenses.”

2) “Only sheriffs and chiefs of police are authorized to perform these functions. . . . Contrary to Applicants’ implication, the Attorney General is not authorized by the CCW statutes to review the decisions of the sheriffs and chiefs of police. Because Applicants’ alleged injury can occur only through the actions of the Sheriff, independent of the authority of the Attorney General, any ostensible harm cannot be traced to the Attorney General.” Mehl v. Blanas.

It is ironic that the Attorney General does not recognize that the arguments she made about her authority to abandon the defense of the gay marriage ban apply equally here. The Sheriff has the ultimate authority to decide whether to continue to fight this case, and he has made his decision to refrain from doing so. But now that it suits her political agenda, Kamala Harris wants the court to impose a double standard.

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Anti’s Seek En Banc Review Of Peruta Decision

February 28, 2014 by 7 Comments

You just knew that the gun prohibitionists would not take the win in the Peruta decision lying down especially since San Diego Sheriff Bill Gore decided to accept the decision.

Today, in what seems to be a coordinated effort, California Attorney General Kamala Harris, the Brady Campaign, the Legal Community Against Violence, the California Peace Officers Association, and the California Police Chiefs Association filed petitions requesting an en banc hearing. The State of California represented by Harris and the Brady Campaign also filed motions to intervene in the case.

02/27/2014
 121  		Filed (ECF) Amici Curiae California
Peace Officers Association and California Police Chiefs Association
petition for rehearing en banc (from 02/13/2014 opinion). Date of
service: 02/27/2014. [8996109]–[COURT UPDATE: Attached searchable
version of petition. Resent NDA. 02/27/2014 by RY] (PRC)
02/27/2014
 122  		Submitted (ECF) Intervenor brief for
review and filed Motion to intervene. Submitted by State of California.
Date of service: 02/27/2014. [8996638] (GDB)
02/27/2014
 123  		Submitted (ECF) Intervenor brief for
review and filed Motion to intervene. Submitted by Brady Center to
Prevent Gun Violence. Date of service: 02/27/2014. [8996736] (NRO)
02/27/2014
 124  		Filed (ECF) Amicus Curiae Legal
Community Against Violence petition for rehearing en banc (from
02/13/2014 opinion). Date of service: 02/27/2014. [8996737] (SJF)

In an article by Emily Miller this evening, Chuck Michel questioned whether any of these parties have standing.

Chuck Michel, the west coast counsel for the National Rifle Association, said Ms. Harris‘ motion to intervene was far out of line because her office wasn’t part of the lawsuit.


“They are trying to improperly influence the court,” Mr. Michel said in an interview. “The are stretching the rules to file in order to get their arguments in front of the court in the hopes that a liberal judge will get the message and ask for a vote himself.”…


“Obviously, what this tells us is the folks that advocate civilian disarmament are upset about the opinion and want to throw everything they can at it to bottle up the 9th Circuit or get it overturned,” said Mr. Michel, whose firm, Michel and Associates, represented the plaintiffs in the Peruta case up to the appeals court level.

UPDATE: As to why Kamala Harris et al are trying to get the Peruta decision reviewed and overturned, I think this story from Fox News pretty much gives the reason.

Gun owners are flooding the sheriff’s offices in two California counties with applications for concealed weapon permits following a bombshell ruling two weeks ago by a federal appeals court that citizens need not justify their requests.

Orange and Ventura counties have dropped the “good cause” standard for issuing conceal carry permits after the requirement was struck down Feb. 13 by the U.S. 9th Circuit Court of Appeal. A three-judge panel of the court ruled 2 to 1 that the Second Amendment bars California counties from requiring law-abiding gun owners who want to carry concealed firearms to demonstrate special, individualized needs for protection.

More than 500 applications have poured in to the Orange County Sheriff’s Department in just two weeks — roughly the total number of applications filed in 2013, a spokesman said. Orange County Sheriff Sandra Hutchens announced on the department’s website that the county will comply with the federal court’s order immediately, sparking the wave of applications.

Once the proles get their permits to carry you just can’t keep them down anymore.

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California Carry Licenses Could Reach 1.4 Million In First Year

February 17, 2014 by 6 Comments

The CalGuns Foundation has calculated that the number of carry licenses in California could reach as high as 1.4 million if the Peruta decision stands and California goes “shall issue”.

Following the Ninth Circuit decision holding “good cause” requirements unconstitutional, The Calguns Foundation projects that the number of California carry licensees will skyrocket during the first year of effective “shall-issue” licensing.

According to data sent to The Calguns Foundation by the California Department of Justice, the number of California CCW licensees in 2013 totaled about 56,000. However, in applying projections to state and county population figures from the state’s Department of Finance, Calguns believes that the number of licensees in California might reach as high as 1.4 million in the Golden State during the first year of a “shall issue” system.

 They have calculated the growth of carry licenses on a county-by-county basis which can be seen here.  Their table provides estimates for a range from one to five percent of a county’s population with the expectation that two percent will be the most likely. CalGuns has used available census statistics, California Department of Justice statistics on both carry licenses and firearms purchases, and the experience of other states to make this projections.

Looking this over, it is is interesting to look at the table to see what might transpire in some of the more anti-gun counties. For instance, San Franciso County might grow from two carry permits to an estimated 12,707 at the 2% level. While San Francisco is the most extreme example, many other counties could see multiple 1,000% increases such as LA which could see an 88,000% increase in carry permits at the 2% level.

You have to wonder if the state’s anti-gun politicians might moderate their extremism if they suddenly found a good number of their constituents had carry licenses. It is easy to demonize a group of people when you only have a few examples like the two who have carry licenses in San Francisco County. It is much harder to do if you have substantial numbers and everyone knows someone with a carry license.

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CalGuns Foundation On Peruta Decision

February 15, 2014 by 4 Comments

The CalGuns Foundation released a statement yesterday evening on the win in the 9th Circuit yesterday. They congratulated the NRA, the California Rifle and Pistol Association, attorney Paul Clement, and California gun law firm Michel & Associates for their work that led to this win for Ed Peruta and the other plaintiffs. If the NRA hadn’t stepped in when they did, this could have turned into a terrible loss for the Second Amendment in California.  The CalGuns statement does give a little bit of the back story on this case.

From CalGuns Foundation:

California takes a step towards “shall-issue” handgun carry licensing

In a major decision today, the federal Ninth Circuit Court of Appeals held that California’s “good cause” requirement for handgun carry licenses violates the Second Amendment to the United States Constitution.

In May 2009, during a short period when the federal Second Amendment legally applied to California through the Ninth Circuit’s Nordyke v. King decision, civil rights attorneys Alan Gura and Donald Kilmer filed a federal right-to-carry lawsuit against Sacramento County’s then-sheriff John McGinness and Yolo County Sheriff Ed Prieto on behalf of The Calguns Foundation (CGF), the Second Amendment Foundation (SAF), and a number of individual plaintiffs. That lawsuit, then named Sykes v. McGinness, challenged the California statutes requiring “good cause” and “good moral character” as facially unconstitutional. The Sykes case also challenged the two sheriffs’ local policies as unconstitutional “as-applied” to the individual plaintiffs’ facts. Sacramento County eventually settled out of the lawsuit by agreeing to implement a “shall-issue” policy; the case continued against Yolo County and Yolo County Sheriff Ed Prieto as Richards v. Prieto.

Months after the Sykes case was filed, a lawsuit that replicated the CGF/SAF lawsuit was filed in San Diego County by Mr. Edward Peruta. Thankfully, the National Rifle Association intervened in the Peruta matter, adding new plaintiffs and significant resources to the case’s legal team including noted civil rights law firm Michel & Associates as well as former Solicitor General Paul Clement. The Peruta case result today is due in large part to the strength of the arguments mirrored from the Sykes lawsuit as well as the excellent legal work by Michel & Associates and Mr. Clement.

Though the Richards and Peruta cases were heard by the same three judge Ninth Circuit panel on the same day, the Court has only released its opinion on the Peruta matter so far. We look forward to the Court’s Richards decision and continuing our efforts to ensure that all law-abiding Californians have an accessible way to fully exercise their right to bear arms for self-defense.

The Calguns Foundation thanks the National Rifle Association, California Rifle & Pistol Association, Michel & Associates, and Mr. Paul Clement for their fantastic work to advance the fundamental Second Amendment right to keep and bear arms and congratulates them on their very important victory for all law-abiding Californians.

For more on these cases and the legal status of the right to bear arms (carry) in California, please visit http://www.calgunsfoundation.org/carry.