Peruta v. San Diego

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S.A.M., the reason I said what I did was that it doesn't really matter what San Diego says.

From the original briefings, they never refuted anything the plaintiff stated. They never offered any cognizant theory for their actions. Nor did the court demand it of them.

Remember, Judge Gonzales said that she was interpreting the case with intermediate scrutiny. At that level, the law is not presumptively lawful. The Government has the burden to justify its actions. Gonzales did not require this.

And... The Nordyke panel did the same thing.

All of this is pointed out in minute detail by Chuck Michel.

So this is not just a challenge to the District Courts opinion. It challenges the 9th Circuit itself. The brief is actually aimed at the U.S. Supreme Court.

Quite frankly, the gloves have come off. The NRA is no longer playing nice. This is full attack mode and whatever panel they draw, will know this.

You can also see this in Don Kilmer's request for rehearing and/or en banc in the Nordyke case.

You can bet these briefs will be used in arguing Williams should cert be granted. To date, not a single District Judge, nor the Circuits are using what little guidance the SCOTUS gave them in Heller and McDonald. Anywhere.

The NRA and the SAF are not frustrated in the least. But they are starting to play hardball.
 
On May 23rd, the Peruta appeal was filed by Chuck Michel (he's the "go-to" NRA attorney for CA). Well it seems that the amicus briefs are about to start rolling in.

On Wed., May 25th, an amicus curiae brief in support of the appellants was filed by the Congress Of Racial Equality (CORE). This is a 42 page brief written by Stephan Halbrook.

The link to the brief is here. You may have to go to Chuck Michel & Associates website and register before you download the file (Warning: An older version of Adobe was used and the file is 6.1MB).

The Peruta brief was a no-holds barred brief that castigates the defendant (San Diego County), the District Court (Judge Gonzales) and the 9th Circuit Nordyke panel. It's gutsy and is directed to the Supreme Court itself.

This amicus brief is of the same genre. It is focused upon the right to carry as the founders understood the term and the 14th amendment and the cure it was supposed to have given the freed slaves, in defending themselves against the Black Codes (Jim Crow laws).
 
Today, the NRA filed its amicus brief for Peruta. The brief is authored by Paul Clement and is extremely powerful. Again, no punches are being pulled.

After setting up the 9th Circuits panel decision, Mr. Clement then writes:
It is accordingly too late in the day to argue that the right to keep and bear arms is less fundamental than the other individual rights enumerated in the Constitution or should be diluted to provide less protection than the Framers guaranteed in the constitutional text. There is consequently no basis to review any regulations that burden that right, let alone those that burden it substantially, under anything less demanding than the strict scrutiny that governs restrictions upon exercise of other fundamental rights.
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This brief is just as, if not more powerful than the opening brief and the CORE brief. The brief can be read here (it's too large to upload by about 50KB).
 
It would appear that either the gloves have come off, or the pro-RKBA forces are wearing velvet gloves over iron fists. IMHO it's about time. The way some courts have been (IMHO) intentionally misreading both Heller and McDonald, they really need to be whacked upside the head with a two-by-four.
 
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From the NRA brief, the fundamental flaw in logic in the County's position:
But the right to carry a firearm only for immediate self-defense is no right at all. The "right" does not materialize until it is too late to exercise. Unless criminals and other who pose the threats that a right to self-defense protects against plan to announce their intent to present a grave and immediate threat and then take a time out to enable the potential victim to exercise his or her Second Amendment rights, a right to immediate self-defense is entirely illusory.
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Another amicus brief is in.

The International Law Enforcement Educators and Trainers Association (ILEETA), and the Independence Institute, in support of neither party. Authored by David Kopel.

This is a hard hitting look at open carry, California style (Unloaded Open Carry - UOC) and why it is dangerous to all concerned. Why the court below erred in its conclusion that UOC was adequate and why concealed carry for ordinary citizens is the manner preferred by most police authorities.

While I have yet to read more than a few pages (I'm on lunch break), I have attached it to this post.
 

Attachments

It's been a very busy day for the Peruta appeal (9th Circuit Court).

As I posted earlier, ILEETA filed an amicus brief. That was on Monday, the 30th of May. Here is a recap of what has happened:

On 5.23.11 Plaintiff-Appellants Appellants’ Opening Brief.

5.25.11 Amici Amicus Brief for Congress of Racial Equality Inc.. Stephan Halbrook.

5.27.11 Amici Amicus Curiae Brief of National Rifle Association of America, Inc., In Support of Appellants And Reversal. Paul D, Clement.

5.30.11 Amici Amicus Brief International Law Enforcement Educators and Trainers Association and The Independence Institute. David Hardy.

5.31.11 Amici Brief of Second Amendment Foundation and Calguns Foundation, Inc. The Calguns Foundation, Inc., Adam Richards, And Brett Stewart As Amici Curiae In Support of Appellants Seeking Reversal. Alan Gura.

5.31.11 Amici Brief of Amici Curiae Center For Constitutional Jurisprudence, Doctors For Responsible Gun Ownership, And Law Enforcement Alliance of America. John C. Eastman.

5.31.11 Amici Gun Owners of California Senator H. L. Richardson (Ret.) Amicus Brief In Support of Appellants. Don Kates.

This is all currently posted at http://michellawyers.com/guncasetracker/perutavsandiego/. This was the last day to file for amicus in support of (or in support of neither) the appellants.

OK, this is a lot of reading to comprehend. I've skimmed all the briefs and they are all good. Some better than others. Yet they all attack San Diego County and the court below. Several attack the panel that decided Nordyke.

The SAF amicus brief specifically mentions that they intend to relate the recent Prieto (now on appeal to the 9th) case with Peruta and state that they want orals on the same day (Gura says filings to that effect are due shortly). This is Gura playing hardball.

Those of you that like a little "light" reading, enjoy! ;)
 
The Appellees (County) in Peruta v. San Diego have filed their response to the Appellants (Ed Peruta, et al) opening brief in the 9th Circuit. The Bradys along with the International Brotherhood of Police Officers and the Police Foundation have filed an amicus brief in support of San Diego.

The Bradys are, of course, pounding the table with, "In The Home!"

Both briefs spend some time telling the court how the discretionary laws of CA are quite constitutional, as CA law allows unloaded open carry. They are both silent on how you can not carry openly (unloaded or loaded) anywhere within those GFSZ's! Even under Federal Law, you must have a license/permit to carry (issued by that State) in order to carry within 1000 feet of a school. CA has passed a similar law, so theoretically, you might be charged as violating both laws.

It appears that San Diego has caught on to the fact that this case has a much larger scope/magnitude than just S.D. County alone:

This case is an indirect effort to change California‘s statutory limitations on the public carry of loaded firearms by attacking the concealed carry licensing policy of a single county sheriff. Appellants‘ argument is, at its a core, a challenge to Penal Code section 12031 rather than this Sheriff‘s administration of concealed carry licensing.
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Well, Doh!

The County then spends a few pages painting a spectacular picture of their licensing scheme and how fair it is.

They then spend a few more pages explaining how the scope of the right does not include anything outside of the home...

And even if it did, CA has provided for alternative methods of carry that are completely fair and do not substantially burden (Thank you, Nordyke panel) the right.

Moving on.

They contend that the Sheriffs' practices meet any standard of scrutiny. They then say that (are you sitting comfortably?):

Intermediate Scrutiny is Applied When Firearm Possession in The Home is Involved.
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Excuse me! That flat out contradicts Heller.

followed with

Rational Basis Review Would Be Appropriate after Nordyke.
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Same old arguments. We've read them, time after time.

If you feel you must read the arguments, Michel & Associates P.C. (MAPC) has the files: http://michellawyers.com/guncasetracker/perutavsandiego/
 
Things are moving ahead, in this case.

Two amici have filed briefs, defending the practice(s) of the San Diego County Sheriff (and CA law in general).

On the same day (8/12) that the Sheriff filed his response, the Brady's filed an amicus brief.

Then on Friday (8/19) the LCAV (Legal Community Against Violence) filed an amicus brief.

Here is what is interesting about these two briefs: There is no mention of the Ezell decision.

It's almost as if they do not see that they are setting up the 9th Circuit to intentionally split with the 7th Circuit. That is one sure method of gaining cert before the SCOTUS. With both Williams and Masciandaro before the SCOTUS, this is something they really do not want to do - but here they are, doing it anyway.

What I'm seeing is utter desperation in action.
 
The defendants are doing an excellent job of giving this case legs to get to a higher juducial level of review. Keep up the good work.
 
The defendants are doing an excellent job of giving this case legs to get to a higher juducial level of review. Keep up the good work.
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Heh. Shhh. Never interrupt an enemy in the midst of making a mistake....
 
Peruta's reply brief was due yesterday, Sept. 6th. It must have been posted late at night, as it wasn't there by the time I called it a night.

It's available now, however and I have attached it to this post.

Chuck Michel attacks and destroys everything the County has implied, ignored and generally misconstrued. The brief even goes so far as to wonder how the Nordyke panel could have gotten its decision so wrong, when the weight of Heller and McDonald were against it.

All in all, a good read.
 

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