Drake (NJ carry permits) files for cert with SCOTUS

"Yesterday the Ninth Circuit panel issued an order commanding the San Diego Sheriff to inform the court as to his position on California's motion to intervene, and to inform the court as to whether he thinks the case is moot, given his decision to start issuing permits.

As I recall, he said he'd start issuing permits once the case is final, so we have rather a problem in circular reasoning. If the court finds the case is moot, then it will become moot, even if it were not before."

If I am understanding "mootness" properly, Gore could take that position since he has changed his process to accept self-defense as good cause.

If then the 9th decides Peruta is "moot", the ruling disappears as law and Lost Angles, SF, etc. can continue on their current course. May issue is may issue, regardless, and Richards and Baker, as they depend on Peruta, would fall also.

The split among the Circuits would be partially repaired, which reduces the need for SCOTUS to take Drake. The anti's win and we are back where we started. Peruta never happened.

Not good.

http://armsandthelaw.com/archives/2014/05/some_movement_i.php
 
If then the 9th decides Peruta is "moot", the ruling disappears as law and Lost Angles, SF, etc. can continue on their current course. May issue is may issue, regardless, and Richards and Baker, as they depend on Peruta, would fall also.
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Um, that's not what I'm hearing on Calguns. The reason lawyers like Chuck Michel are pushing the "mootness" angle is that it would shut down further appeals and leave the state AG's office with no way to request an en banc hearing or take it to the Supremes. That would leave it as good case law in the 9th Circuit, opening challenges to all the rest of the counties. It would also preserve the circuit split between the Peruta and Drake cases making Drake look better for a Supreme Court ruling and if THAT happens Peruta really is moot because a carry right would be the law of the land coast to coast and depending on the ruling we could maybe do an open carry rally in front of Bloomberg's house in NY.

:D
 
Ah, Jim, thanks very much for your perspective. Not a lawyer, and I summarized the discussion at Dave Hardy's page, which was pessimistic. I didn't know Michel was pushing this idea.

Visited Michel's page and didn't see anything, and I didn't see that anyone at Calguns had posted it or commented. I posted the thread there.

It sounds, with your view, like Gore has about nowhere to go that can hurt us, but those with better minds than mine can comment about that.
 
As long as Drake is in (possible) play for certiorari, I wonder if the 9th will issue the Peruta mandate, or hold it pending Drake.
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I wonder the same thing. esqappellate or someone more knowledgeable than me from MDShooters said there is no race condition, yet we continue to see both sides kicking the can down the road.
 
I think SCOTUS is waiting for the 9th decide on en banc, and I think it'll be re-listed again this Monday. They relisted another case 20 times already; so obviously when they see a case they want they'll re-list as long as it takes for the lower courts to make up their mind.
CA9 is prodding the SD sheriff to make a move, preferably to change his policy and issue CCWs for self defense. That may sink the AG's bid to intervene and make it even more of an uphill climb for Richards/Baker to get en banc.
 
press1280 said:
That may sink the AG's bid to intervene and make it even more of an uphill climb for Richards/Baker to get en banc.
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How will it make it more difficult to get en banc? Both Richards and Baker have already asked for en banc, those requests must be voted on by the 9th, no matter what happens with the AG or anything else in the world. Are you thinking something political?

HarrySchell said:
And then Peruta is the standard within the Circuit, the stay lifted. Lost Angles would have to comply.
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Isn't Peruta already the standard? It's good law and citeable anywhere in the US of A. As for LA / SF complying, that won't happen anytime soon, even if Peruta is upheld en banc or all the current petitioners for en banc are denied, at least for SF, and perhaps LA. Chuck Michel said to the Cam & Co show that SF has told his office they won't comply with Peruta, and so Michel is already preparing for suing SF (et probably al) all the way up the judicial food chain.
 
Isn't Peruta already the standard? It's good law and citeable anywhere in the US of A?
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It's not binding until final. You may technically be able to cite it but it's not going to carry a lot of weight until the circuit court opinion is final.
 
Isn't Peruta already the standard? It's good law and citeable anywhere in the US of A.
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Kinda sorta but not really is my guess. As KyJim has pointed out it's not final. Other than that, it's also a lot more hefty in the CA9 where it's apparently already been used by the CA9 in other opinions.

Chuck Michel said to the Cam & Co show that SF has told his office they won't comply with Peruta, and so Michel is already preparing for suing SF (et probably al) all the way up the judicial food chain.
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Tell me that's not a huge waste of money. Maybe I've got this wrong... Peruta just made carry a civil right. If you sue the government for violating your civil rights and win, they often not only have to pay you your court costs, but you get punitive/reward/extra money as well? So the SF sheriff is going to be writing a huge number of checks to residents of San Francisco paid for by a lot more residents of San Francisco?
 
JimDandy said:
....If you sue the government for violating your civil rights and win, they often not only have to pay you your court costs, but you get punitive/reward/extra money as well? So the SF sheriff is going to be writing a huge number of checks to residents of San Francisco paid for by a lot more residents of San Francisco?
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Yes and no. I'm not entirely sure about the 9th Circuit, but in the 8th:
Punitive damages are unavailable against a city, county, or state;
Punitive damages are available against an actor in his individual capacity.

However, punitive damages could also drive an individual actor into bankruptcy, rendering said punitive damages uncollectible.
 
Not sure about punitive damages; I doubt they're available, but would love to hear from someone who knows for sure.

What I think is available are legal fees. I'm pretty sure if, e.g., SF disobeys Peruta, gets sued, and loses, SF will be paying the legal fees for the winner(s). It's not the billions SF should be paying (for starters) for violating your civil rights, but every little bit helps.
 
I think there may be more consequences than just legal fees to open defiance of a court order in a civil rights matter, but I'll let someone more qualified than me chime in.
 
Spats said:
Jim said:
....If you sue the government for violating your civil rights and win, they often not only have to pay you your court costs, but you get punitive/reward/extra money as well? So the SF sheriff is going to be writing a huge number of checks to residents of San Francisco paid for by a lot more residents of San Francisco?
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Yes and no. I'm not entirely sure about the 9th Circuit, but in the 8th:
Punitive damages are unavailable against a city, county, or state;
Punitive damages are available against an actor in his individual capacity.
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In general, Monell claims are disallowed in all circuits (see Monell v. Department of Social Services, 436 U.S. 658 (1978)). This Supreme Court Case held that generally, you can't sue a municipality, such as town, village, county or school district, for something that a government employee did. In other words, there is no respondeat superior in § 1983 litigation.

There appears to be some confusion among the circuits however, if you have indisputable proof that the Superior Commissioner, City/County/State Supervisor, et al, knew that such action was a civil rights violation and still failed to provide adequate supervision or a change of conduct that would alleviate the violation. While certainly the individual would be responsible in a § 1983 suit, the municipality seldom is.

That's an extremely high hurdle to overcome, to get around the Monell exclusion. And that's assuming the circuit you are in, allows such an exclusion. It is something the Supreme Court will have to ultimately decide.

I'm pretty sure that the 9th is in line with the 8th. So while the individuals running the County/City may be liable, the municipality will not be.

I hope this clarifies what you are reading, Jim.
 
Al Norris said:
In general, Monell claims are disallowed in all circuits (see Monell v. Department of Social Services, 436 U.S. 658 (1978)). This Supreme Court Case held that generally, you can't sue a municipality, such as town, village, county or school district, for something that a government employee did. In other words, there is no respondeat superior in § 1983 litigation.
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No, there is no respondeat superior. However, a city may be sued directly as a person under § 1983. Monell v. Department of Social Services. But, in order to impose liability on a municipality under § 1983, the plaintiff must identify a custom or policy that caused the plaintiff’s injury. Board of Commissioners of Bryan County, Oklahoma v. Brown.

In other words, a city/county entity may not be held liable simply because it employs a tortfeasor, or because of an isolated incident of unconstitutional behavior on the part of one of its employees. However, it can be held liable where it can be shown that a policy, practice, or custom of the entity was a moving force behind the violation. It can also be held liable where the one "bad actor" is a policymaker for the entity.
Al Norris said:
There appears to be some confusion among the circuits however, if you have indisputable proof that
the Superior Commissioner, City/County/State Supervisor, et al, knew that such action was a civil rights violation and still failed to provide adequate supervision or a change of conduct that would alleviate the violation. While certainly the individual would be responsible in a § 1983 suit, the municipality seldom is.
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See "policymaker" above.

Also:
. . . .it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.

Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986)
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Although it feels like justice for a local government to be held liable, nothing brings reality home quite like an official getting personally sued. Good luck filling that empty position with another willing violator.
 
In other words, a city/county entity may not be held liable simply because it employs a tortfeasor, or because of an isolated incident of unconstitutional behavior on the part of one of its employees. However, it can be held liable where it can be shown that a policy, practice, or custom of the entity was a moving force behind the violation. It can also be held liable where the one "bad actor" is a policymaker for the entity
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So the City of Seattle was at least partially on the hook here, (probably because of more than civil rights violations but also that "emotional distress" stuff which it should have normally been immune to) because they have a recent history of doing this sort of thing such that the DOJ was one more-ish news story away from taking over?

And the LA county could be on the hook because the one bad actor, in this case the Sheriff of LA County, is a policymaker for the entity- obviously because the policy he's making is violating the right, willfully ignoring the judgement just handed to his virtual neighbor for the same thing?
 
Many municipal governments carry insurance which will cover their employee's acts, including civil rights violations even if the judgment is against the employee and not the government. A judgment against a police officer can affect the rates a city pays for that insurance.

However, insurance policies typically exclude punitive damages and exclude acts which are criminal. I'm sure that's why the SPD lawsuit settled without any punitive damages -- it would have let the insurance company off the hook with the plaintiff's recourse to seek collection on the police officer's personal assets.
 
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