Peruta v. San Diego
- Thread starter Al Norris
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Indeed-San Diego has thrown in the towel!
http://apps.sdsheriff.net/press/Default.aspx?FileLink=fce6dc6b-e015-4c15-8d6c-4e38b4e212e1
http://apps.sdsheriff.net/press/Default.aspx?FileLink=fce6dc6b-e015-4c15-8d6c-4e38b4e212e1
esqappellate
New member
Not over yet. General Order 5.8 of the 9th Circuit can still be involved by a judge acting sua sponte:
b. Sua Sponte Calls
If no petition for rehearing en banc before the full court is filed, any judge may, within seven days after the date such petition was due, request a vote on whether the case should be reheard by the full court. This request shall be accompanied by a memorandum in support of full court consideration. Thereafter, the provisions of this chapter relating to petitions for rehearing en banc of three-judge panel cases shall apply.
b. Sua Sponte Calls
If no petition for rehearing en banc before the full court is filed, any judge may, within seven days after the date such petition was due, request a vote on whether the case should be reheard by the full court. This request shall be accompanied by a memorandum in support of full court consideration. Thereafter, the provisions of this chapter relating to petitions for rehearing en banc of three-judge panel cases shall apply.
The 'sua sponte' date is March 6, says one of the Michel and Associates lawyers (Peruta's lawyers).
Cannot even guess the likelihood of one judge asking for the rehearing, nor whether 9th would vote to do it.
Note also this, from Sheriff Gore's letter to the Supervisors:
Cannot even guess the likelihood of one judge asking for the rehearing, nor whether 9th would vote to do it.
Note also this, from Sheriff Gore's letter to the Supervisors:
California law (PC 26200) allows an issuing agency to add reasonable restrictions:
Marking licenses 'not valid on school property', for example, is a legal and sometimes used restriction.
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speedrrracer
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wikipedia claims that:
What is exceptionally important? Does the circuit court of appeals deal with issues that are not of exceptional importance? Obv we're all biased and think this decision is a planet-shaker, but who knows what the 9th will think.
And what weight does "disfavored" carry?
I guess we have until 3/6 to wonder
wikipedia said:
What is exceptionally important? Does the circuit court of appeals deal with issues that are not of exceptional importance? Obv we're all biased and think this decision is a planet-shaker, but who knows what the 9th will think.
And what weight does "disfavored" carry?
I guess we have until 3/6 to wonder
My money is on one or more of the judges stepping up to the plate. What's the best course of action right now for those of us that want a CCW in San Diego . Do we go start the paper work Monday or should we wait until all this legal stuff has played out . I just finished a CCW class here in San Diego that covers 38 states that had 4hr of class time and I had to show competence with a firearm . I'm not sure if that certificate will be good for CA . There was a guy in the same class renewing his CA ccw . Not sure if that means anything but thought I'd throw that out there .
From Circuit Rule 35-1: When the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for petitioning for
rehearing en banc.
With the circuit splits and O'Scannlain's opinion directly calling them out on several salient points, doesn't that qualify under 35-1? I may not be a lawyer but the bar doesn't seem too high here.
Besides, just because a judge or three may step up to the plate doesn't mean that they will make it on to first base.
You're right-this would be a situation where an en banc would be justified.
However, several reasons why in light of the obvious split they may pass(or simply not get a majority vote):
The obvious time and resources spent on this, coupled with San Diego not wanting to move forward, they may just say the hell with it.
Also, almost every 2A opinion after Heller I've seen always notes a sense of confusion, with some courts outright saying SCOTUS ought to clarify whether the right extends outside the home (MD Supremes in Williams). What better way to have SCOTUS weigh in than to keep the circuit split intact?
However, several reasons why in light of the obvious split they may pass(or simply not get a majority vote):
The obvious time and resources spent on this, coupled with San Diego not wanting to move forward, they may just say the hell with it.
Also, almost every 2A opinion after Heller I've seen always notes a sense of confusion, with some courts outright saying SCOTUS ought to clarify whether the right extends outside the home (MD Supremes in Williams). What better way to have SCOTUS weigh in than to keep the circuit split intact?
The AP released an article from the SF Chronicle by Bob Egelko.
In the article he claimed that state Attorney General Kamala Harris could intervene and request a hearing from the full court.
Is this true, can the AG request a full court hearing?
The article also said,
Harris could request intervention from the full court and, if approved, could request a rehearing before an 11-judge panel, an action that would require a majority vote of the court's 27 judges.
Is this true?
Link.
http://m.apnews.com/ap/db_6407/contentdetail.htm?contentguid=ajKrcy0B&src=cat&detailindex=11
It says the AG has that power in this article as well.
That means that if there is to be an appeal to the ruling of a three-judge panel, it will have to come from the state attorney general or another judge on the appeals court, said James Chapin, senior deputy county counsel for San Diego County.
http://www.latimes.com/local/lanow/...d-guns-20140221,0,2138479.story#axzz2u1SO0xq7
In the article he claimed that state Attorney General Kamala Harris could intervene and request a hearing from the full court.
Is this true, can the AG request a full court hearing?
The article also said,
Harris could request intervention from the full court and, if approved, could request a rehearing before an 11-judge panel, an action that would require a majority vote of the court's 27 judges.
Is this true?
Link.
http://m.apnews.com/ap/db_6407/contentdetail.htm?contentguid=ajKrcy0B&src=cat&detailindex=11
It says the AG has that power in this article as well.
That means that if there is to be an appeal to the ruling of a three-judge panel, it will have to come from the state attorney general or another judge on the appeals court, said James Chapin, senior deputy county counsel for San Diego County.
http://www.latimes.com/local/lanow/...d-guns-20140221,0,2138479.story#axzz2u1SO0xq7
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esqappellate
New member
Correct, the State is not a party. IIRC, they did not even file as an amicus. A non party may not seek rehearing.
As I understand it, only the parties to the case may file for rehearing/hearing en banc. CA was not a party to the case, as the plaintiffs did not challenge the statutory scheme of CA. Plaintiffs only challenges the Sheriffs interpretation of the "good cause" clause of the statute.
That being said, the Defendant has chosen not to file for rehearing.hearing en banc. So at this point, any Judge on the 9th may, sua sponte, call for en banc. They have until March 6th to make that call and must support that call with a memorandum of supporting points and authorities. "Upon receipt of a timely sua sponte en banc call, the author of the panel opinion or the Clerk of Court upon the request of the En Banc Coordinator shall ordinarily enter an order directing the parties to file simultaneous briefs within 21 days setting forth their respective positions on whether the matter should be reheard en banc. If the En Banc Coordinator orders that no supplemental briefing will be filed, the parties will be notified of the sua sponte en banc call."
http://cdn.ca9.uscourts.gov/datastore/uploads/rules/general_orders/general_orders11_11.pdf
If no call is made, the mandate will issue shortly after the 6th. Then the case is returned to the District Court, where the Judge there will have to issue the injunction against San Diego County.
Keep in mind that the Sheriff avoided saying he would not petition the SCOTUS for a grant of cert. That option is still open. Time for this is 90 days, starting on the 14th of Feb.
That being said, the Defendant has chosen not to file for rehearing.hearing en banc. So at this point, any Judge on the 9th may, sua sponte, call for en banc. They have until March 6th to make that call and must support that call with a memorandum of supporting points and authorities. "Upon receipt of a timely sua sponte en banc call, the author of the panel opinion or the Clerk of Court upon the request of the En Banc Coordinator shall ordinarily enter an order directing the parties to file simultaneous briefs within 21 days setting forth their respective positions on whether the matter should be reheard en banc. If the En Banc Coordinator orders that no supplemental briefing will be filed, the parties will be notified of the sua sponte en banc call."
http://cdn.ca9.uscourts.gov/datastore/uploads/rules/general_orders/general_orders11_11.pdf
If no call is made, the mandate will issue shortly after the 6th. Then the case is returned to the District Court, where the Judge there will have to issue the injunction against San Diego County.
Keep in mind that the Sheriff avoided saying he would not petition the SCOTUS for a grant of cert. That option is still open. Time for this is 90 days, starting on the 14th of Feb.
esqappellate
New member
Al, you do a terrific job with this stuff.62coltnavy
New member
Not only is the State not a party, the majority opinion did not declare that the "may issue" state statute was unconstitutional, rather that the Sheriff's application of that statute was unconstitutional. This raises the issue in my mind as to whether the AG even has standing to assert error. I don't think she does (I am sure much to her chagrin.) The only way around this "dilemma" is to follow the lead of the dissenter, who wished to narrowly focus on whether it was unconstitutional for the State to have a "may issue" law (an issue in his mind that required participation of the State and might possibly require legislative changes). The majority brilliantly finessed this argument.
General primer on California carry law: It is generally legal to carry firearms outside of incorporated areas (cities and towns) wherever hunting is permitted. It is generally illegal to carry any firearm, loaded or unloaded, handgun or long gun, within any incorporated area, with exception for LEO, security guards, parades, immediate defense of self before the police arrive, and CCW (and a few miscellaneous exceptions of rare application). California enforces the 1000' exclusionary zone of the GFSZA, but CCW holders are exempt (unless their issuing agency imposes a schools property restriction). Notwithstanding Penal Code section 171b (allowing pocket knives shorter than 4" and nonparty CCW holders to carry in government buildings ) all courts I know of ban all "weapons." There is state pre-emption for most gun laws, except those regulating sales. Transport of firearms is the same as under FOPA--locked container other than glove box or center console, unloaded. There is no knife law pre-emption; and by way of example, it is legal under state law to carry a sword, but all blades longer than 3" are banned in LA. Fixed bladed knives must be carried openly.
Although called a "concealed carry weapons license" the license is for handguns only, and does not exempt a licensee from California's long list of prohibited dangerous weapons (nanchukas, switch blades, cane swords, blow guns, gravity knives, ballisongs, brass knuckles, belt buckle knives, etc.) First time applicants for a CCW must have 16 hours of training [there is a statutory provision for a 24 hour community college class, but no county imposes it], pass a background check, fill out a state mandated form, have "good cause" and "good moral character." (The latter may be the next battleground--an applicant in Ventura reports being denied for having too many traffic tickets.) There is an in person interview with the issuing agency (San Diego has started scheduling them at the rate of four per day--and is booked into August already). The application and fingerprinting runs around $150. The issuing agency may require a mental evaluation with a cost not to exceed $150. Renewals are every two years, and require a 4 hour class. Various SOs have imposed additional requirements, all of questionable legality, such as requiring $1m insurance naming the Sheriff as an additional insured, written indemnity agreements (even though the IA is statutorily immune from liability for issuing a license), letters of reference, etc. Some agencies will interview neighbors and business associates (which seems counter to the whole theory of concealed carry), others don't, relying instead on the state and NICS checks for priors. They will check your DMV record.
General primer on California carry law: It is generally legal to carry firearms outside of incorporated areas (cities and towns) wherever hunting is permitted. It is generally illegal to carry any firearm, loaded or unloaded, handgun or long gun, within any incorporated area, with exception for LEO, security guards, parades, immediate defense of self before the police arrive, and CCW (and a few miscellaneous exceptions of rare application). California enforces the 1000' exclusionary zone of the GFSZA, but CCW holders are exempt (unless their issuing agency imposes a schools property restriction). Notwithstanding Penal Code section 171b (allowing pocket knives shorter than 4" and nonparty CCW holders to carry in government buildings ) all courts I know of ban all "weapons." There is state pre-emption for most gun laws, except those regulating sales. Transport of firearms is the same as under FOPA--locked container other than glove box or center console, unloaded. There is no knife law pre-emption; and by way of example, it is legal under state law to carry a sword, but all blades longer than 3" are banned in LA. Fixed bladed knives must be carried openly.
Although called a "concealed carry weapons license" the license is for handguns only, and does not exempt a licensee from California's long list of prohibited dangerous weapons (nanchukas, switch blades, cane swords, blow guns, gravity knives, ballisongs, brass knuckles, belt buckle knives, etc.) First time applicants for a CCW must have 16 hours of training [there is a statutory provision for a 24 hour community college class, but no county imposes it], pass a background check, fill out a state mandated form, have "good cause" and "good moral character." (The latter may be the next battleground--an applicant in Ventura reports being denied for having too many traffic tickets.) There is an in person interview with the issuing agency (San Diego has started scheduling them at the rate of four per day--and is booked into August already). The application and fingerprinting runs around $150. The issuing agency may require a mental evaluation with a cost not to exceed $150. Renewals are every two years, and require a 4 hour class. Various SOs have imposed additional requirements, all of questionable legality, such as requiring $1m insurance naming the Sheriff as an additional insured, written indemnity agreements (even though the IA is statutorily immune from liability for issuing a license), letters of reference, etc. Some agencies will interview neighbors and business associates (which seems counter to the whole theory of concealed carry), others don't, relying instead on the state and NICS checks for priors. They will check your DMV record.
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