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Breaking news on Peruta -- NO APPEAL


Tvandermyde

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Petition to rehear en banc TL;DR version:

 

"....but...but...but...if you don't reverse your decision we will be handing out these dang permits just because. We

don't want to. And you called us out for trying to game the system and wait until our opportunity to intervene had

passed, and we are going to ignore the fact that you held that this was a Right and we will keep repeating how big a pain

complying will be."

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I'm a tad fuzzy on how all of the fine details work together, but in reading that, Kamala has effectively dragged the entire state law and may issue as a practice into play. The petition asserted that if San Diego county had to issue for purposes of self defense, then that would mean that the whole law is flawed...yes, they made the case against themselves. IF this is upheld en banc, it will be a very clear circuit split. It's like they're trying to get slapped down.

 

I'm not sure how they made this out like this, since they were really only were petitioning for intervenor status.

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I'm a tad fuzzy on how all of the fine details work together, but in reading that, Kamala has effectively dragged the entire state law and may issue as a practice into play.

 

 

She is asserting that Peruta overturns California law, but if she loses her appeal, she'll then turn around and say California's "May Issue" scheme is constitutional, its just that "Self Defense" must be taken into consideration as "Good Cause".

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I'm a tad fuzzy on how all of the fine details work together, but in reading that, Kamala has effectively dragged the entire state law and may issue as a practice into play.

 

She is asserting that Peruta overturns California law, but if she loses her appeal, she'll then turn around and say California's "May Issue" scheme is constitutional, its just that "Self Defense" must be taken into consideration as "Good Cause".

Do you think odd how she went about stating her case? It's kind of typical I guess when grasping at straws.

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I started from the top thread and was thinking "South Dakota". And it seemed a bit odd that SD would be having 2A issues. It got stranger and stranger as I read and heard California was involved and Hawaii. I was thinking "how big is this district?" FInally, I figured out it was San Diego County. Hey anything to keep California in COurt defending its ludicrous positions is good. Remember our fight here. It was ONLY because of the courts that our Legislature did anything. Then, yes we pressured the legislature but the courts pressured them first.

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.. so wait, she filed for en banc 9 frikking months later? Wasn't there a shot clock that Lil Lisa needed to hit in order to file en banc?

Well, not quite. Here's the way I understand what has happened. The state was not part of the original case and after Peruta won, San Diego's sheriff said he would not file for en banc, Harris wanted in so she could file for en banc. The courts told her no, now she is filing en banc on that ruling.

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Right.

 

She wants the entire court to review the order holding that the State of California may not intervene.

 

The State of California was not a party in this case, and Kamala Harris ignored the Peruta case and didn't seek to make the State of California a party to this case even though she had over 4 years to do so. Even after the County of San Diego lost she didn't seek to intervene. It wasn't until Sheriff Gore announced that he would not appeal the Peruta three judge panel decision, either to an en banc panel or to the Supreme Court that Kamala Harris filed a motion to "intervene". That is synonymous with being made a party to the lawsuit.

 

Right now the only issue that the judges should consider is if the state of California has a valid claim for the whole court to review the order denying it intervenor status.

 

That is all they should be looking at.

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Do you think odd how she went about stating her case? It's kind of typical I guess when grasping at straws.

 

 

Her argument is dictated by the order. She has to convince the other judges that the majority erred concerning timeliness and that 28 U.S.C. § 2403 and Federal Rule of Civil Procedure 5.1 provide a basis for intervention.

 

I think Kamala Harris hands-down loses the timeliness issue. There are 3 factors when determining timeliness:

 

1) The stage of the proceeding at which an applicant seeks to intervene.

2) The reason for and length of the delay.

3) The prejudice to other parties.

 

The plaintiffs - Peruta have already stated that they have no objection to Kamala Harris being given intervenor status so the third factor doesn't prejudice the other party (Peruta). I'm assuming that the plaintiffs would love to take this to the Supreme Court, although I don't know that to be true.

 

As to the first factor, Kamala Harris waited 4 years - NOT TIMELY. The court rules state that "A party seeking to intervene must act as soon as he knows or has reason to know that his interests might be adversely affected by the outcome of the litigation." Everyone and their uncle knew what was at stake in this case - except California's Attorney General? The order noted that they waited 4 years, and they should have known what the case was about.

 

As to the second factor, Kamala Harris made (in my opinion) a moot argument about the reason for delay. Her argument is that the State of California trusted San Diego County to do a great job of litigating the case, and they expected the county to appeal the decision, and they were shocked when the county basically gave up.

 

But remember that the rules say "A party seeking to intervene must act as soon as he knows or has reason to know that his interests might be adversely affected by the outcome of the litigation." The fact that Kamala Harris had faith in San Diego County to represent the whole interest of the state - shows that she knew that the interests of the state were at stake, and in that case she should have sought to intervene much sooner than she did, certainly before the decision was handed down, and certainly before Sheriff Gore declared that he would not appeal nor seek an en banc review.

 

The remaining point is: Does 28 U.S.C. § 2403 and Federal Rule of Civil Procedure 5.1 provide a basis for intervention?

 

28 U.S.C. § 2403( b ) provides:
In any action, suit, or proceeding in a court of
the United States to which a State or any
agency, officer, or employee thereof is not a
party, wherein the constitutionality of any
statute of that State affecting the public
interest is drawn in question, the court shall
certify such fact to the attorney general of the
State, and shall permit the State to intervene
for presentation of evidence, if evidence is
otherwise admissible in the case, and for
argument on the question of constitutionality.
The State shall, subject to the applicable
provisions of law, have all the rights of a party
and be subject to all liabilities of a party as to
court costs to the extent necessary for a proper
presentation of the facts and law relating to
the question of constitutionality.

 

 

Kamala Harris is asking to intervene based on the constitutionality of California's "May Issue" laws being brought into question. O’Scannlain and Callahan are saying that the Peruta decision doesn't overturn the law, it just clarifies for San Diego County that self defense should be considered "good cause"

 

Remember - there are plenty of counties in California where this isn't an issue, just like in Illinois, there are counties that have a jackass for sheriff.

 

In Illinois, Moore / Shepard overturned Illinois UUW law. There was no way the law could exist after the Moore decision, there was nothing about the Illinois ban that could be salvaged. Not so with California's law. The California law still exists and the law can exist. Sheriffs just have to take "self defense" into consideration when determining "good cause". :)

 

So those are the basic arguments.

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In Illinois, Moore / Shepard overturned Illinois UUW law. There was no way the law could exist after the Moore decision, there was nothing about the Illinois ban that could be salvaged. Not so with California's law. The California law still exists and the law can exist. Sheriffs just have to take "self defense" into consideration when determining "good cause". :)

 

So those are the basic arguments.

 

 

This might be slightly off topic but still relevant. In California now, when applying for a CCL assuming you pass the background check and use self-defense (which is now a good cause) as your reason for needing a CCL what grounds could you still be denied? Is it still because they feel like it?

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  • 2 weeks later...

Look at this crap. Gore and Prieto, big men, filing an amicus in support of rehearing en banc. Lying to the court in their amicus as well by stating NO OTHER CIRCUIT has held that carriage outside the home is a protected right. Let's ignore CA7.

 

"The decision in Peruta departs from the analysis by sister
circuits in three noteworthy ways. First, despite acknowledging
California does not completely ban public handgun carry, even in a
concealed manner, for self-defense, the majority deems that the
requirement of a heightened self-defense need constitutes a complete
destruction of the right to public carry. 742 F.3d at 1168-1170. No
other circuit court, including the Seventh, has determined a Second
Amendment right can be 'totally destroyed' where there are available
legal avenues for exactly that conduct.
Nor has any other circuit
stated that a right to concealed carry arises wherever no ability to
openly carry exists.
"

Really, Messrs. Gore and Prieto? The Seventh Circuit did not explicitly state that the total ban on carriage outside the home is a "destruction" of a right, but holding the ban unconstitutional is the equivalent of stating that a law destroys a right. So,are we playing "split hairs" or what?

 

Peruta-v-San-Diego_Brief-of-Amici-Curiae-Sheriff-Ed-Prieto-and-County-of-Yolo-in-Support-of-Rehearing-En-Banc1.pdf

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It'll be a happy new year as the Ninth Circuit has 21 days from December 3, excluding holidays and weekends, to circulate briefs amongst themselves, but they'll take their sweet time. Judge Kozinski is Chief Judge so he automatically gets a vote. Judge Thomas, same Judge who dissented in Peruta, Richards, Baker, and the denial of Kamala's motion to intervene, is the En Banc Coordinator (because of the size of the court). We'll find out whether this is going in front of the Circuit sometime in January or February. The judges who sat on the panel also automatically get a vote so that's already 3-1 in favor of denying en banc. Honestly, I would be shocked if they decided to chuck this on rehearing. The case would blow the already existing circuit split wide open and set up a case for SCOTUS to finally put the issue to bed.
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This entire case has just reached a level of absurdity that I have not seen in a long long time. Brady Bunch is now trying to join Kamala's petition (rather than file their own). They can't when there is no existing party to represent the interests of the intervenor (the State of California) but hey whatever, beat your heads against the wall. No existing party? How about, oh, Gore? Maybe Prieto or Baker? Referencing this brief filed by the Brady Bunch back on 11/26.

 

10-5697111-26-14Brady.pdf

 

"Pursuant to Fed. R. App. P. 28(i) and 35( :cool:, Proposed Intervenor Brady
Campaign to Prevent Gun Violence (“Brady”) moves to join in the petition for
panel rehearing of the November 12, 2014 Order Denying Motions to Intervene
[Dkt. 156], with suggestion of rehearing en banc filed on behalf of the State of
California. Brady makes several additional points in support of rehearing."

 

Apparently this is all Gore's fault, he threw them under the bus, so it's time to cry about it.

 

"At the time Brady’s interests first were implicated, i.e. when the lawsuit was
filed, Brady had no right to intervene because Sheriff Gore adequately represented
Brady’s interests. See Fed. R. Civ. P. 24(a)(2) (intervention is permitted 'unless
existing parties adequately represent that interest'); [see also Dkt. 156 at 6 (noting
that 'movants originally thought Sheriff Gore adequately protected their
interests'
).] As a result, Brady was justified in intervening 'as soon as it became
clear . . . that [its] interests . . . would no longer be protected” by Sheriff Gore.
'

United Airlines, Inc. v. McDonald, 432 U.S. 385, 386 (1977). That is precisely
what Brady did: Once Sheriff Gore decided not to continue his defense of the
lawsuit, Brady realized that its interests were no longer adequately represented and
immediately moved to intervene.
"

Seriously? So, I should be able to intervene in cases when I don't think that the government is adequately representing MY interests? You're a corporation, a person, you have First Amendment rights, but "you" do not have personhood.

"The Panel implies that the State of California should have recognized the
potential inadequacy sooner because (1) the State of California’s interests are
distinct from those of the County of San Diego and (2) the County of San Diego
argued before the district court that the plaintiffs were actually challenging the
State of California’s firearm regulatory framework. [Dkt. 156 at 6 n.1 (citing
Peruta v. Cnty. of San Diego, 758 F.Supp.2d 1106, 1115 n.7 (S.D. Cal. 2010)).]
Brady disagrees with this point, but in any event the same cannot be said for
Brady, which, like the County of San Diego before it, seeks to defend the
constitutionality of San Diego’s good cause policy.
"

Oh, good, I thought it was a challenge to the state law. That's what Kamala has been feeding everyone, that's what the Bradys and LCHV stated, now they're saying it's a challenge to the law AS APPLIED. Square yourselves away.

 

Here's amici filed by LCHV or whatever they call themselves now and the Yolo County Sheriff (strange how Prieto didn't care before, now he does...hrmmm). Yes, they will likely make you sick to your stomach but have fun :P

 

10-56971 Amicus by Law Ctr to Prevent Gun Violence.pdf

 

10-56971 Amicus by Yolo County.pdf

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Once Sheriff Gore decided not to continue his defense of the lawsuit, Brady realized that its interests were no longer adequately represented and immediately moved to intervene

 

 

 

That is not what the rules say about intervening.

 

A party seeking to intervene must act as soon as he knows or has reason to know that his interests might be adversely affected by the outcome of the litigation.

 

 

 

A party should know that as soon as briefs are filed.

 

But anyway, the whole idea that Brady Campaign could be made a party is ridiculous, the ruling doesn't affect Brady directly - as in, it doesn't call into question the constitutionality of its statutes because Brady is not a state.

 

They should be beef slapped

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While reading the Yolo brief I absolutely could not get the phrase "maze of twisty little passages" out of my head. That has got to be the most tortured rendering of Heller and post-Heller jurisprudence I've ever seen. Set it next to the recent Tyler (CA6) decision and its analysis of these topics for comparison and it looks positively demented.

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Good to see IC on the Firearms Policy Coalition's Brief Amici Curaie opposing rehearing en banc, along with the California Assoc. of FFLS, Liberal Gun Owners Association (vote for Brown then....yeaa), SAF, etc. Quite a few citations of Hollingsworth v. Perrry in this brief.

 

2014-12-24-Peruta-amici-brief-opposing-rehearing-FILED.pdf

 

Counsel for Amici doesn't beat around the bush here...

 

"INTRODUCTION


Red flags should be raised when the office of an elected official seeks to intervene in a case after the appeal has been decided so that it can request rehearing en banc. Buzzers and alarms should go off when that same office has consistently advised the courts for years that it has no standing in the very type of case it is seeking to join. And so it is here."

 

The nail in Kamala's coffin. Her predecessor weaseling out of of Mehl v. Blanas by telling the court that the AG's office doesn't have anything to do with the permit issuance process and, therefore, Plaintiffs in Mehl did not have standing to sue the California AG (she was named in the complaint, dismissed after...eh, see below) is gonna come back and bite Ms. Harris in the posterior. Now she argues that Plaintiffs do have standing to sue the California AG in an instance where a Sheriff's application of the law is being challenged....

 

"Don’t just take our word for it that the State lacks standing in a case like this. The California Attorney General’s office has long taken the position that plaintiffs who sue over a county’s policy for issuing concealed-carry permits lack standing to sue the Attorney General because it “has no role in CCW license decisions.” Answering Br. of Appellee Atty. Gen. of the State of Cal. at 3, Mehl v. Blanas, No. 08-15773 (9th Cir. Oct. 15, 2008), Dkt. Entry 6675648. In Mehl, the Attorney General argued—in a brief filed in this Court, concerning a constitutional challenge to the Sacramento County sheriff’s handling of CCW license applications—that plaintiffs 'lack[ed] standing as to the Attorney General because their alleged injuries are not traceable to any action or authority of the Attorney General.' Id. at 40 (some capitalization omitted). That time, the Attorney General explained:

[T]he Attorney General has no statutory authority to grant, deny or revoke CCW licenses. Only sheriffs and chiefs of police are authorized to perform these functions. Review of CCW license decisions by the sheriffs and chiefs of police is available from state courts. Contrary to [appellants’] 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."

More of the California AG's briefs filed with CA9 in Mehl being used against her (*grin*):

 

"Indeed, the Attorney General’s office confirmed in Mehl v. Blanas that the State role was so non-existent under the statutory scheme that even a facial challenge to the California Penal Code provisions would not support standing for the State: '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.' Id. at 42."

Judge Gonzalez in CASD bought the CA AG's argument.....

"The District Court in that case, however, accepted the Attorney General’s argument:


[T]he Court elects to follow the holdings of the Ninth Circuit and determine that the sheriff acts as the final policymaker for the county when issuing CCWs. Accordingly, Plaintiffs have failed to establish any connection between the Attorney General and a county sheriff insofar as the issuance of CCWs is concerned.

Mem. and Order Granting Atty. Gen. Lockyer’s Mot. to Dismiss at 7:1-6, No. 2:03-cv-02682 (E.D. Cal. Sept. 3, 2004), Dkt. Entry 17."

Back when Brown was AG, he filed a memorandum in support of a motion to dismiss In Rothery v. Blanas, using the "Plaintiffs don't have standing to sue" *hands up in the air* argument. Mr. Brown makes an excellent argument...in favor of NOT permitting Kamala to intervene.....

 

"[T]he Attorney General emphasized that '[t]he Ninth Circuit has been very clear that suits cannot be brought in federal court against an attorney general to challenge the validity of statutes that he has no authority to enforce,' and that this Court 'has repeatedly rejected actions against attorney generals [sic] on these grounds.' Id. at 19:25-28. Furthermore, the Attorney General argued, a judgment entered against it would not provide an 'effective remedy' because the exercise of regulatory authority concerning concealed-carry policies is 'vested by law in the [county sheriff] exclusively.' Id. at 21:1-21.

Now, if that doesn't work, well....

 

"Conferring standing on the Attorney General here would invite state officials to meddle in litigation at their leisure—potentially disrupting the legal rights of those who actually hold them."

"The Attorney General’s office apparently decided that the State had a significant interest in this case only after reading the panel’s decision. Amici have a strong interest in avoiding the creation of a 'free option' for state officials to jump into litigation at what is normally considered the end of a case, rather than the beginning."

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