Peruta v. County of San Diego (CCW Case)

[teratos]

A great man once said, "Don't tell me the odds."

You must unlearn, what you have learned. Prevail we must.

Great man, indeed.

 

[press1280]

Question for Esq, any others that may know-This case, at least for the moment, is citeable as authority? Once it's been brought to SCOTUS' attention, the cat's out of the bag so to speak, even if it goes en banc?

 

[Inigoes]

Either way, I've thus far seen no logic whatsoever that makes a compelling case for these judges to care about what the Supreme Court has to say. Between that and the evidence of other judges in other circuits essentially treating the Supreme Court's opinion as if it didn't exist, it seems clear that the result is going to be based strictly on what outcome these people want, and little else. This is a position I've argued for some time, and I've yet to see someone rebut it with a substantial argument. I'd love to believe that judges actually have something of value on the line here, but that doesn't appear to be the case at all (indeed, the evidence pretty clearly shows the opposite).

It's called progressivism. After FDR unsuccessfully tried to change the SCOTUS by stacking it with more judges, appointments have always been to judges with the centralized government first mindset.

The SCOTUS threw a wrench in the works by taking the bait to define the only untouched amendment in the BOR. That was too enticing to be in virgin territory.

Now we are at a crossroads, where the 2A was almost regulated away by the progressives, and the SCOTUS decisions giving power back to the individual; reclaiming the three tiers of governance: individual, state, and federal.

 

[Mark75H]

Question for Esq, any others that may know-This case, at least for the moment, is citable as authority? Once it's been brought to SCOTUS' attention, the cat's out of the bag so to speak, even if it goes en banc?

As I understand it, only within that circuit and only for this brief period. Generally ephemeral and not really citable for practical purpose. If there was another similar case in the same circuit, I bet those involved (including the judge) would be more inclined to watch than act.

 

[Kharn]

Question for Esq, any others that may know-This case, at least for the moment, is citeable as authority? Once it's been brought to SCOTUS' attention, the cat's out of the bag so to speak, even if it goes en banc?

Citeable until an en banc panel is called (which takes, IIRC, 45-60 days per 9th Circuit rules) or the Supreme Court overturns it. Drake will be up for cert in late March or early April, so Peruta may still be in effect at that point.

 

[Al Norris]

pulled - got my cases mixed up

 

[kcbrown]

A great man once said, "Don't tell me the odds."

You must unlearn, what you have learned. Prevail we must.

“The fear of loss is a path to the Dark Side.”

LOL!

I'm most certainly not saying we should be using these things as a means of determining whether or not to give up the fight. No, this fight is one we should never give up, because it is the fight for liberty. Giving up means acquiescing to serfdom, something I find unthinkable.

However, it's useful to know what to expect. The odds can tell you that.

 

[Campfire]

Should this decision be upheld (or its reasoning adopted by SCOTUS on some other appeal earlier), may-issue states could just allow for open carry to try to keep their restrictions on concealed carry. Or CA could rush to reinstate open carry, in an effort to make this decision moot so there would no longer be a split.

May issue states could do that, but those states don't seem to be ones that would tolerate seeing guns on the hips of it citizens--if they have to allow carry, they prefer that the guns are hidden from public view. IL went from outright ban to concealed carry, CA recently outlawed even unloaded open carry, etc.

 

[FlatsFlite]

I think we all (non-statistically speaking) "expected" a different decision from the ninth. The odds are against us, they may always be against us.

 

[esqappellate]

Question for Esq, any others that may know-This case, at least for the moment, is citeable as authority? Once it's been brought to SCOTUS' attention, the cat's out of the bag so to speak, even if it goes en banc?

Sure, it is certainly citeable. it is precedent in the 9th Circuit and else where as well.

 

[esqappellate]

I think we all (non-statistically speaking) "expected" a different decision from the ninth. The odds are against us, they may always be against us.

Actually, I always had great hopes for Peruta, Richards and Baker. I know that O'Scannlain is a great judge and he often pulls in other judges with the force of his reasoning. This opinion however was even more than I hoped for. It doesn't get any better than this folks.

 

[press1280]

Sure, it is certainly citeable. it is precedent in the 9th Circuit and else where as well.

Awesome. I'm sure SCOTUS was made aware of this at their conference yesterday with the NRA cases and Lane. I'm curious what the court does with these 3 cases.

 

[Cyra]

I think we all (non-statistically speaking) "expected" a different decision from the ninth. The odds are against us, they may always be against us.

Tell me about it! As someone who lived in CA the majority of her life, it was amazing what decisions that have come out of that court. However, this circuit court is so darn large, there is no way you can get all the sitting judges to listen to oral arguments (there are about 28 of them more or less).

There have been calls over the years to break this circuit up into smaller circuits and I think the fact that its impossible to get everyone together to do a simple basic function should be so obvious...but I guess the politics are against it.

 

[Lightning]

Hope the case stands up to the en banc process. I sure would like to see it get to SCOTUS and this be solved one way or another.

 

[kcbrown]

Hope the case stands up to the en banc process. I sure would like to see it get to SCOTUS and this be solved one way or another.

It will require substantial dissent within the ranks of the Democrat-appointed judges for that to be likely.

Here are the probabilities of success based on the number of "defectors" among the Democrat-appointed judges. This is based on Konzinski heading up the panel, and drawing 10 judges from a pool of 26, when we presume that all Republican-nominated judges will side with us and we vary the number of "defectors" from the set of Democrat-nominated judges:

• 0 defectors: 11%
• 1 defector: 19%
• 2 defectors: 29%
• 3 defectors: 41%
• 4 defectors: 54%
• 5 defectors: 66%
• 6 defectors: 76%
• 7 defectors: 85%
• 8 defectors: 91%
• 9 defectors: 95%
• 10 defectors: 98%
• 11 defectors: 99%
• 12 defectors: 99.9%
• 13 defectors: 100%

So we need at least 4 defectors in order for the odds to swing in our favor.


If we presume the "limited en banc" procedure, wherein the original panel judges are excluded from the en banc panel, then we get:

• 0 defectors: 3.5%
• 1 defector: 9%
• 2 defectors: 18%
• 3 defectors: 31%
• 4 defectors: 45%
• 5 defectors: 59%
• 6 defectors: 73%
• 7 defectors: 84%
• 8 defectors: 91%
• 9 defectors: 96%
• 10 defectors: 99%
• 11 defectors: 99.8%
• 12 defectors: 100%

So for that, we'd need at least 5 defectors in order for the odds to swing in our favor.


Note that if we have 5 defectors who vote against taking the case en banc, then the en banc appeal will be denied then and there, but that someone might defect to our side does not automatically imply that they wish to see the en banc appeal itself denied, as they may want to have the opportunity to put their 2 cents in. However, I do regard that as unlikely, so the chances are good that if we have 5 or more "defectors" in the Democrat camp, then the appeal will be denied as long as the Republican-nominated judges all vote against the appeal.


Based on that, if the appeal isn't denied outright in the beginning, it's more likely than not that the original decision will be overturned.

 

[Al Norris]

Awesome. I'm sure SCOTUS was made aware of this at their conference yesterday with the NRA cases and Lane. I'm curious what the court does with these 3 cases.

No conference yesterday. That will be on the 21st.

 

[Kharn]

It will require substantial dissent within the ranks of the Democrat-appointed judges for that to be likely.

Here are the probabilities of success based on the number of "defectors" among the Democrat-appointed judges. This is based on Konzinski heading up the panel, and drawing 10 judges from a pool of 26, when we presume that all Republican-nominated judges will side with us and we vary the number of "defectors" from the set of Democrat-nominated judges:

• 0 defectors: 11%
• 1 defector: 19%
• 2 defectors: 29%
• 3 defectors: 41%
• 4 defectors: 54%
• 5 defectors: 66%
• 6 defectors: 76%
• 7 defectors: 85%
• 8 defectors: 91%
• 9 defectors: 95%
• 10 defectors: 98%
• 11 defectors: 99%
• 12 defectors: 99.9%
• 13 defectors: 100%

So we need at least 4 defectors in order for the odds to swing in our favor.


If we presume the "limited en banc" procedure, wherein the original panel judges are excluded from the en banc panel, then we get:

• 0 defectors: 3.5%
• 1 defector: 9%
• 2 defectors: 18%
• 3 defectors: 31%
• 4 defectors: 45%
• 5 defectors: 59%
• 6 defectors: 73%
• 7 defectors: 84%
• 8 defectors: 91%
• 9 defectors: 96%
• 10 defectors: 99%
• 11 defectors: 99.8%
• 12 defectors: 100%

So for that, we'd need at least 5 defectors in order for the odds to swing in our favor.


Note that if we have 5 defectors who vote against taking the case en banc, then the en banc appeal will be denied then and there, but that someone might defect to our side does not automatically imply that they wish to see the en banc appeal itself denied, as they may want to have the opportunity to put their 2 cents in. However, I do regard that as unlikely, so the chances are good that if we have 5 or more "defectors" in the Democrat camp, then the appeal will be denied as long as the Republican-nominated judges all vote against the appeal.


Based on that, if the appeal isn't denied outright in the beginning, it's more likely than not that the original decision will be overturned.

We don't need to win en banc, but it would help. We need a very strongly worded "This is complete ********! 1 First get off your butts and fix this!" dissent, and given the 9th's rule on the chief judge sitting on the panel, I'd expect to get it.

 

[kcbrown]

We don't need to win en banc, but it would help. We need a very strongly worded "This is complete ********! 1 First get off your butts and fix this!" dissent, and given the 9th's rule on the chief judge sitting on the panel, I'd expect to get it.

If you're talking about something that would "compel" SCOTUS to take Peruta, well, there ain't no such thing. SCOTUS takes what it wants, when it wants. If SCOTUS wants to achieve the equivalent of "states can govern carry however they wish", they need only refrain from taking any carry case at all.

The problem with SCOTUS is that it is composed of a bunch of pansies who are afraid of setting straight the hard cases that are "politically controversial", as evidenced by the Obamacare decision. Don't believe me? Explain, then, why both Heller and McDonald were 5-4 decisions when, certainly, McDonald should have been a 9-0 one (once the Constitutional right is established as an individual one, how can it possibly not be applicable against the states unless the 14th Amendment is a dead letter?) and we barely got Heller (the decision reads as if it was carefully tailored to get at least one judge, probably Kennedy, to sign onto it).


No, given how SCOTUS has utterly ignored carry in public until now, in a treatment very different from how it has handled every other enumerated right, I have no reason at all to believe that SCOTUS will take on Peruta when it passed over everything else. Admittedly, Peruta appears to have been written to catch the attention of SCOTUS, but seeing how Roberts wrote "It is not our job to protect the people from the consequences of their political choices" as justification for the ObamaCare decision, I've no reason to believe the Court sees carry in public any differently when the above is combined with the fact that the Court has ignored case after case.

 

[Mark75H]

I think you have a point. Time will tell though.

 

[danb]

It will require substantial dissent within the ranks of the Democrat-appointed judges for that to be likely.

Here are the probabilities of success based on the number of "defectors" among the Democrat-appointed judges. This is based on Konzinski heading up the panel, and drawing 10 judges from a pool of 26, when we presume that all Republican-nominated judges will side with us and we vary the number of "defectors" from the set of Democrat-nominated judges:

• 0 defectors: 11%
• 1 defector: 19%
• 2 defectors: 29%
• 3 defectors: 41%
• 4 defectors: 54%
• 5 defectors: 66%
• 6 defectors: 76%
• 7 defectors: 85%
• 8 defectors: 91%
• 9 defectors: 95%
• 10 defectors: 98%
• 11 defectors: 99%
• 12 defectors: 99.9%
• 13 defectors: 100%

So we need at least 4 defectors in order for the odds to swing in our favor.


If we presume the "limited en banc" procedure, wherein the original panel judges are excluded from the en banc panel, then we get:

• 0 defectors: 3.5%
• 1 defector: 9%
• 2 defectors: 18%
• 3 defectors: 31%
• 4 defectors: 45%
• 5 defectors: 59%
• 6 defectors: 73%
• 7 defectors: 84%
• 8 defectors: 91%
• 9 defectors: 96%
• 10 defectors: 99%
• 11 defectors: 99.8%
• 12 defectors: 100%

So for that, we'd need at least 5 defectors in order for the odds to swing in our favor.


Note that if we have 5 defectors who vote against taking the case en banc, then the en banc appeal will be denied then and there, but that someone might defect to our side does not automatically imply that they wish to see the en banc appeal itself denied, as they may want to have the opportunity to put their 2 cents in. However, I do regard that as unlikely, so the chances are good that if we have 5 or more "defectors" in the Democrat camp, then the appeal will be denied as long as the Republican-nominated judges all vote against the appeal.


Based on that, if the appeal isn't denied outright in the beginning, it's more likely than not that the original decision will be overturned.

Your analysis is overly simplistic. This is an extremely well written opinion from a respected judge. From the defendants perspective this may be precisely the case they want to prevent the en banc panel or SCT from hearing. If the en banc panel upholds this opinion, or if they deny cert, the damage is even worse than if they contain this case to the effect on San Diego county (by not appealing). People in other counties will still have to sue to get this enforced as I understand it, and those cases may present better opportunities for en banc review if they draw an amenable judge/panel.

Keep in mind, CA is (like IL) a stand your ground state- self defense outside the home is recognized by case law. The en banc panel will be aware of the case law pertaining to self defense outside the home in CA, and self defense outside the home implies a weapon to defend yourself with. Plus, a lot of CA is "permissive may issue" (green) https://marylandshallissue.com/get-informed/shall-issue-maps/#prettyPhoto

which means that judges may be less inclined to be worried about the public safety impact of something they may perceive as narrowly applied.

Plus, there is politics as well (re-elections).

If you gave me odds/payoff equivalent to the probabilities you model spits out for 2 or fewer defectors, I'd take the bet.