Peruta v. County of San Diego (CCW Case)

[ArchConservative]

Not really. Those here saying the cases are "falling like dominoes" are correct, but the same analogy works in reverse: each of these cases is based on one decision that is not final and could be overturned or put on hold ad infinitum. Peruta is the lead domino in this new line. Knock it down, and the rest of the Ninth Circuit pro-gun cases fall with it.

Because all three decisions are from the same panel, there is no real strength in numbers. This is not three 3-judge panels whose majority went this way. This is three cases decided the same way by two judges. If anything, Baker (Hawaii) will put more pressure on the Ninth to take the case en banc, because the stakes are higher. I also suspect you'll see the AGs in other Ninth states (WA or OR?) argue in favor of en banc, despite their state being shall-issue.

On the other hand, I wonder whether the lower courts on some level actually want some guidance from the Supreme Court, and would prefer to deny en banc to get that.

 

[Al Norris]

Yesterday, in another order for the Peruta case, we have this:

Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.

Each party is each directed to file a response of no more than 6,000 words addressing the pending motions to intervene filed with this Court on February 27, 2014. Each response shall address:

• 1) Motion to Intervene by the State of California,
• 2) Motion for Leave to Intervene by the Brady Campaign to Prevent Gun Violence, and
• 3) Petition for Rehearing En Banc by Amici Curiae California Police Chiefs’ Association and California Peace Officers’ Association insofar as the Petition is a motion to intervene. See p. 2, n.2.

The responses shall be filed within 21 days of this order.

If I am figuring correctly, both sides have until March 27th to file.

 

[Gryphon]

So IIRC that pushes the issuance of a mandate, even under the best possible circumstances, past the conference date for Drake It was a long shot anyway, but now it seems the lack of a final decision in Peruta will make it even less "persuasive" at the Drake conference.

 

[fightinbluhen51]

Another interesting view from Calguns ( http://www.calguns.net/calgunforum/showthread.php?t=901086&page=5 )



Ah, the game of Chess... is Judge O'Scannlain a Grand Master?

If I read this quoted CalGuns info correctly we get...

1) Rule on Peruta
2) AG cries and asks for intervenor status
3) Panel remands Richards back basically saying see Peruta and re-evaluate
4) Panel could tell AG, well, you failed at life and law, your intervenor status is denied, but hey, you get a second shot at Richards now, have fun, here is your bone
5) En banc could still be granted by a judge requesting from the CA9

If I follow that logic.

 

[Kharn]

The decision isn't depublished until en banc is granted. 21 days for briefs plus a few weeks for a decision and still more time for en banc voting still means Peruta will be valid during Drake's likely conference dates (28 March or 4 April, based on 2-3 weeks from NJ's response which is due 14 March).

 

[Gryphon]

The decision isn't depublished until en banc is granted. 21 days for briefs plus a few weeks for a decision and still more time for en banc voting still means Peruta will be valid during Drake's likely conference dates (28 March or 4 April, based on 2-3 weeks from NJ's response which is due 14 March).

Agree, but still no mandate.

 

[ryan_j]

Is it precedential without a mandate?

 

[Elliotte]

Is it precedential without a mandate?

Based on the order given in Richards (remanded to the District and told to follow Peruta), I'd say yes, but IANAL

 

[Gryphon]

It's not final without a mandate. The time to petition for en banc hearing, and also the time to petition for cert. and/or request an interlocutory stay has yet to expire. So I think what you see in Richards is the Chief Judge and the Associate Judges just following through consistent with the rationale they articulated in Peruta. Richards can always be stayed or over-turned subject to the outcome in Peruta.

 

[press1280]

So IIRC that pushes the issuance of a mandate, even under the best possible circumstances, past the conference date for Drake It was a long shot anyway, but now it seems the lack of a final decision in Peruta will make it even less "persuasive" at the Drake conference.

On the flip side, there's no way that this can be pulled back by en banc by the Drake conference date. A true split is on the table, for the first time. In addition we should expect a real weak brief from NJ, in which they'll probably claim the case shouldn't be taken because CA3's opinion agrees with NJ precedent state cases from the 60's and 70's.
If SCOTUS has an issue with Peruta's fate up in the air, they can just sit on Drake for another conference.

 

[ryan_j]

It's not final without a mandate. The time to petition for en banc hearing, and also the time to petition for cert. and/or request an interlocutory stay has yet to expire. So I think what you see in Richards is the Chief Judge and the Associate Judges just following through consistent with the rationale they articulated in Peruta. Richards can always be stayed or over-turned subject to the outcome in Peruta.

While that may be true, is it precedential for purposes of having a split?

 

[esqappellate]

While that may be true, is it precedential for purposes of having a split?

The way this works is that the decision becomes binding precedent on the day it is issued until or unless it is vacated by a decision to grant rehearing en banc. Such order vacates the panel's decision. Thus, the panel is quite correct in holding that Peruta is binding in Richards. Now, the "mandate" has not issued and thus the decision in not "final" in the sense it can still be reheard either by the panel or the court sitting en banc. Thus, as to the parties, until the mandate issues, the court has not yet acted (the court acts through its mandate) and thus has not changed the status quo ante as to these parties. In principle, SD is not bound by the Peruta panel decision until the mandate issues, which is why would be intervenors have asked to stay the mandate pending a decision on their motions to intervene.

 

[ryan_j]

The way this works is that the decision becomes binding precedent on the day it is issued until or unless it is vacated by a decision to grant rehearing en banc. Such order vacates the panel's decision. Thus, the panel is quite correct in holding that Peruta is binding in Richards. Now, the "mandate" has not issued and thus the decision in not "final" in the sense it can still be reheard either by the panel or the court sitting en banc. Thus, as to the parties, until the mandate issues, the court has not yet acted (the court acts through its mandate) and thus has not changed the status quo ante as to these parties. In principle, SD is not bound by the Peruta panel decision until the mandate issues, which is why intervenors have asked to stay the mandate..

Kinda figured so, thanks.

 

[Gray Peterson]

The way this works is that the decision becomes binding precedent on the day it is issued until or unless it is vacated by a decision to grant rehearing en banc. Such order vacates the panel's decision. Thus, the panel is quite correct in holding that Peruta is binding in Richards. Now, the "mandate" has not issued and thus the decision in not "final" in the sense it can still be reheard either by the panel or the court sitting en banc. Thus, as to the parties, until the mandate issues, the court has not yet acted (the court acts through its mandate) and thus has not changed the status quo ante as to these parties. In principle, SD is not bound by the Peruta panel decision until the mandate issues, which is why would be intervenors have asked to stay the mandate pending a decision on their motions to intervene.

We have sheriff's in California saying that they do not have to issue licenses for self defense good cause because the case is not "final" and "the ruling is not in force yet", and therefor they are still refusing to issue licenses. They are saying that the "date of mandate" is when they'll start changing their policies and issuing.

In what way is the sheriff's correct or incorrect?

-Gray

 

[Dogabutila]

It isn't necessarily final, but it is in force. I think.

 

[esqappellate]

We have sheriff's in California saying that they do not have to issue licenses for self defense good cause because the case is not "final" and "the ruling is not in force yet", and therefor they are still refusing to issue licenses. They are saying that the "date of mandate" is when they'll start changing their policies and issuing.

In what way is the sheriff's correct or incorrect?

-Gray

incorrect technically cuz Peruta is precedent, but it would take a new suit and that is pointless until Peruta becomes final

 

[Maestro Pistolero]

It isn't necessarily final, but it is in force. I think.

Not quite. The mandate is being held to consider requests from the LOSERS.

 

[ryan_j]

I find it so infuriating that when the courts rule for a fantasy right to homosexual anal sex/marriage, then the clerks "must" start issuing licenses right away, but not so for enumerated gun rights.

Not always. In nj they had a stay for that.

 

[Gray Peterson]

I find it so infuriating that when the courts rule for a fantasy right to homosexual anal sex/marriage, then the clerks "must" start issuing licenses right away, but not so for enumerated gun rights.

Sorry to poke a hole in your victim-hood narrative, but any person with any understanding of the Proposition 22/Proposition 8 legal fight in California knows that with the exception of the 5 month period between June and November of 2008, the gay couples in California could not get married in California when the legal battles over the issue was raging between March 2004 and June of 2013 (nearly 10 years).

Gay couples had their 2004 SF marriage licenses invalidated by the CA Supreme Court in 2005, a new challenge had to be filed which took 3 years to make it up to the State Supreme Court, there was the 5 month period allowed for them, and then Prop 8 passed and closed off the licenses. There was a 6 month period after that where the couples who were married during that 5 month period didn't even know if they were married anymore.

The Yes on 8 intervenors were able to get stays from the SCOTUS on the lower federal courts refusing to stay the decision. SCOTUS later ruled that the same intervenors who they granted stays to did not even have the right to appeal. So SCOTUS unnecessarily caused nearly 33 months of unnecessary delays.

I'm uniquely aware of California's carry situation, being a frequent visitor of California, being resident here in the 9th Circuit, and having many close friends and family in California. Heck, I'm already planning out a lawsuit against the "county of residency" restriction so that non-residents of California can apply for a carry license (note it won't be Peterson v. CA County Sheriff), hopefully by mail so east coast folks can get it easy from a sheriff, but county of residency needs to go first before we hit that next step.

But please, instead of doing all of that, let's create a victim-hood narrative that reduces gay people to sexual acts, all the while whining about a month or two long delay when carry of functional firearms has been banned in California since the Mulford Act of 1967.

 

[Ethan83]

I find it so infuriating that when the courts rule for a fantasy right to homosexual anal sex/marriage, then the clerks "must" start issuing licenses right away, but not so for enumerated gun rights.

Sorry to poke a hole in your victim-hood narrative, but any person with any understanding of the Proposition 22/Proposition 8 legal fight in California knows that with the exception of the 5 month period between June and November of 2008, the gay couples in California could not get married in California when the legal battles over the issue was raging between March 2004 and June of 2013 (nearly 10 years).

Gay couples had their 2004 SF marriage licenses invalidated by the CA Supreme Court in 2005, a new challenge had to be filed which took 3 years to make it up to the State Supreme Court, there was the 5 month period allowed for them, and then Prop 8 passed and closed off the licenses. There was a 6 month period after that where the couples who were married during that 5 month period didn't even know if they were married anymore.

The Yes on 8 intervenors were able to get stays from the SCOTUS on the lower federal courts refusing to stay the decision. SCOTUS later ruled that the same intervenors who they granted stays to did not even have the right to appeal. So SCOTUS unnecessarily caused nearly 33 months of unnecessary delays.

I'm uniquely aware of California's carry situation, being a frequent visitor of California, being resident here in the 9th Circuit, and having many close friends and family in California. Heck, I'm already planning out a lawsuit against the "county of residency" restriction so that non-residents of California can apply for a carry license (note it won't be Peterson v. CA County Sheriff), hopefully by mail so east coast folks can get it easy from a sheriff, but county of residency needs to go first before we hit that next step.

But please, instead of doing all of that, let's create a victim-hood narrative that reduces gay people to sexual acts, all the while whining about a month or two long delay when carry of functional firearms has been banned in California since the Mulford Act of 1967.