Today, the final day to file appeals re the denials of intervenor status for California AG Kamala Harris and The Brady Campaign (or Center), both have filed their appeals asking for en banc reviews of their denials.

Heard Chuck Michel (of Michel & Associates, litigators of Peruta) on NRA News today apparently saying that there is no time limit on how long the court may take to decide on whether or not to grant or deny these appeals. It took the 3-judge panel nine months to deny the requests, so who knows how long it will take for this decision? If denied, Harris/Brady could appeal to SCOTUS, which would likely add another year to the process (though less if they deny cert). If granted by the Ninth, then they would ask for en banc review of Peruta, and then there is (I believe) another "open ended" time period for granting or denying en banc review. IF granted, I'd guess a couple of years to schedule, re-hear, and issue an en banc opinion re Peruta. Two-thirds of the judges in the Ninth are appointed by Democrats, so the likelihood that the randomly selected 11 judge en banc panel would uphold Peruta is very slim. Whichever side loses at that point will likely appeal to SCOTUS for cert, and whatever SCOTUS does add another few months (denial of cert) to a couple more years (grant cert and hear the case). I'll be a LOT older when this gets resolved.

In the meantime, it's unclear what affect all that legal maneuvering will have on the issuance of the mandate to Gore (San Diego County) requiring him to issue solely on the basis of a claim of "self-defense". And of course, Baker might be so affected as well. I don't see any definitive answer as to whether Peruta (Gore) or Richards or Baker will essentially be stayed until it's all resolved or not.

Stay tuned. For a few more years. 

[Edit: Of course, I should add that it is within the realm of "possibility" that the Ninth will deny both parties appeals in a day or two, neither party will appeal to SCOTUS, there will be no sua sponte Ninth decision to go en banc, Richards and Baker requests for en banc will be denied and they won't appeal at any level and we will all have our CCWs in hand by New Years Day, 2015. Where's the icon for "double crazy"?]

Here is the Harris appeal court document: http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v-San-Diego_Petition-for-Rehearing-or-Rehearing-En-Banc.pdf

Today, the final day to file appeals re the denials of intervenor status for California AG Kamala Harris and The Brady Campaign (or Center), both have filed their appeals asking for en banc reviews of their denials.

Heard Chuck Michel (of Michel & Associates, litigators of Peruta) on NRA News today apparently saying that there is no time limit on how long the court may take to decide on whether or not to grant or deny these appeals. It took the 3-judge panel nine months to deny the requests, so who knows how long it will take for this decision? If denied, Harris/Brady could appeal to SCOTUS, which would likely add another year to the process (though less if they deny cert). If granted by the Ninth, then they would ask for en banc review of Peruta, and then there is (I believe) another "open ended" time period for granting or denying en banc review. IF granted, I'd guess a couple of years to schedule, re-hear, and issue an en banc opinion re Peruta. Two-thirds of the judges in the Ninth are appointed by Democrats, so the likelihood that the randomly selected 11 judge en banc panel would uphold Peruta is very slim. Whichever side loses at that point will likely appeal to SCOTUS for cert, and whatever SCOTUS does add another few months (denail of cert) to a couple more years (grant cert and hear the case). I'll be a LOT older when this gets resolved.

In the meantime, it's unclear what affect all that legal maneuvering will have on the issuance of the mandate to Gore (San Diego County) requiring him to issue solely on the basis of a claim of "self-defense". And of course, Baker might be so affected as well. I don't see any difinitive answer as to whether Peruta (Gore) or Richards or Baker will essentially be stayed until it's all resolved or not.

Stay tuned. For a few more years. 

[Edit: Of course, I should add that it is within the realm of "possibility" that the Ninth will deny both parties appeals in a day or two, neither party will appeal to SCOTUS, there will be no sua sponte Ninth decision to go en banc, Richards and Baker requests for en banc will be denied and they won't appeal at any level and we will all have our CCWs in hand by New Years Day, 2015. Where's the icon for "double crazy"?]

Here is the Harris appeal court document: http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v-San-Diego_Petition-for-Rehearing-or-Rehearing-En-Banc.pdf

Yep probably be like 2016 before all this procedural bullshit is over.

Today's (December 3, 2014) order and updates from the court:

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722

12/3/2014 Order directing response to State of California's 11/26/2014 petitions
11/26/2014 Brady Campaign to Prevent Gun Violence Motion to join State of California's 11/26/2014 petitions
11/26/2014 State of California's Petition for Panel Rehearing and Petition for Rehearing En Banc (from 11/12/14 Order)

The order directs plaintiff (Peruta) to file a response to the petitions for rehearing en banc for Harris and Brady within 21 days (Christmas eve).

http://cdn.ca9.uscourts.gov/datastore/general/2014/12/03/10-5697112-03-2014.pdf

Anyone holding their breath on this one is in serious trouble. At the rate this is going, some of us who aren't holding our breath may be in serious trouble.

Update for Peruta

http://cdn.ca9.uscourts.gov/datastor...2-03-2014B.pdf


Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
A judge of this Court having made a sua sponte call for a vote on whether this case should be reheard en banc, the parties shall file, within 21 days from the date of this order, simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc. See G.O. 5.4(c)(3). Amici curiae wishing to file briefs regarding whether this case should be reheard en banc may also do so within 21 days from the date of this order.

Parties who are registered for ECF should file the brief electronically without submission of paper copies. Parties who are not registered ECF filers should submit the original brief plus 50 paper copies.

Yep probably be like 2016 before all this procedural bullshit is over.

But then you have to add on more years when/if the state legislature drags its feet on rewriting the law and we have to sue again for failure to abide by the court ruling. Or do you anticipate that in the 2016 estimate?

[ fixed, after proper correction from punaperson -- thanks ]

Peruta might go en banc, after all -- Even though neither of the parties have appealed

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/04/the-ninth-circuit-and-the-right-to-carry-guns-hello-again-peruta/

Peruta goes en banc -- Even though neither of the parties have appealed

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/04/the-ninth-circuit-and-the-right-to-carry-guns-hello-again-peruta/

A minor clarification for those who might not read the linked article: There has been a sua sponte request (a request by a judge of the Ninth Circuit) for a vote by all the judges (29, thus would require 15 "yes" votes to go en banc)) on whether or not to take Peruta en banc (a randomly drawn 10 judge panel (2/3 of the judges are Democratic appointees) plus the chief judge, who, as of December 1, is Peruta dissenter judge Thomas (who replaced pro-2A chief judge Kozinski). The announcement of the vote on whether or not the court takes the case en banc will likely not happen until at least March or April, and could take longer. Most people commenting on the en banc situation seem to think it will go en banc, and will be overturned there, and possibly even be "depublished" (it would have no force of law at all). If that turns out to be the case, then an appeal to SCOTUS is the remaining option. SCOTUS has, in the past two years, declined and let stand three other district court of appeals appeals on cases nearly identical: claims that discretionary "good cause" practices that allow almost no one to acquire the right to bear arms outside the home or business are unconstitutional. Peruta thus may not be granted cert, and thus would be null and void. Baker would be done. We'd have no CCW, and it would be "constitutional" according to the courts. But it's all just crystal ball gazing, no one really knows what will happen, but there are certainly precedents and evidence that suggest the probability of possible outcomes (CCW in Hawaii anytime in the near future is not one of them).

But then you have to add on more years when/if the state legislature drags its feet on rewriting the law and we have to sue again for failure to abide by the court ruling. Or do you anticipate that in the 2016 estimate?

Ont his current case it's Good cause = self defense.  So I don't know what they will come up with.  Even places like IL are getting it.  The litigation in DC may be over with on this point - they seem to be playing that game.   I don't know for sure though.  The only thing I really learned is that restoring a right takes a shit ton of time lol.

Update today: Amicus brief filed in support of AG Harris's appeal for rehearing or rehearing en banc re intervenor status by The Law Center to Prevent Gun Violence. Mentions Baker in a footnote as one (along with Richards) of the "other pending proceedings that would allow the Court to revisit en banc the divided panel’s sweeping merits decision in this case."

The only good news about this is that they tout their submission of prior amicus briefs in Heller and McDonald, both of which they lost, so let's hope their streak stays alive.

http://cdn.ca9.uscourts.gov/datastore/general/2014/12/09/10-56971%20Amicus%20by%20Law%20Ctr%20to%20Prevent%20Gun%20Violence.pdf

Just another "detail". Amicus brief supporting en banc hearing of Peruta filed by Sheriff Prieto and Yolo county. Prieto is the sheriff in Richartds v. Prieto subject to the Peruta decision, which, like Baker, essentially says "see Peruta".

Those of you interested in these sorts of details need to read the brief linked to below. I'll just give one example of an argument presented: Because Heller allows for some restrictions on carry outside the home for "sensitive places", and because the Peruta majority does not delineate what that "sensitive place" rationale in Heller specifically entails, therefore there is no argument that California's law, and sheriffs Gore's and Prieto's "good cause" requirement ("one's personal safety alone is not considered good cause") could not include EVERYWHERE OUTSIDE THE HOME ("airports, city streets, plazas, parks, malls, stadiums, depots, and other places").  I kid you not. Read it. And weep.     

http://blog.californiarighttocarry.org/wp-content/uploads/2014/02/Peruta-v-San-Diego_Brief-of-Amici-Curiae-Sheriff-Ed-Prieto-and-County-of-Yolo-in-Support-of-Rehearing-En-Banc1.pdf

Maybe Florida and 4th circuit will save us?

http://www.freerepublic.com/focus/f-bloggers/3236886/posts

I would be happy to open carry.  I'd love to see the progs
vomit and shake.

Two more amicus briefs have been filed arguing for en banc rehearing of Peruta. One by the Brady Center, and one by California Police Chiefs’ Association and California Peace Officers’ Association. Apparently Hawaii has also filed an amicus brief, but it isn't available yet. Both briefs rehash previous arguments as to how the Peruta majority got it wrong, and Brady in particular argues extensively quoting the judge Thomas original panel dissent. The police organizations argue more based upon the contradictory ruling in other circuits that have upheld "good cause" prohibitions requirements in New Jersey, Maryland, and New York. Of course they completely cherry-pick their quotations to support their arguments and ignore all the quotes from Heller and McDonald that disprove their disingenuous arguments (as clearly laid out by judge O'Scannlain in the original Peruta decision in refuting the arguments from the other circuits).

One thing I find interesting as a lay reader is noting the typos and errors. These would seem to be important documents, written by highly paid attorneys specializing in these issues, and thus I am surprised that they don't know the most basic facts about the court and can't proofread accurately, given spell-checkers and all. The police association brief addresses it to "HONORABLE CHIEF JUDGE ALEX KOZINSKI", whereas Peruta dissent author Sidney Thomas has been chief judge since December 1. They also, in their table of contents write "EN BANK" rather than "en banc". Brady table of contents lists "page 177" while the brief is 28 pages long. Let's hope the minds that created these documents are insufficient not only to the task of proofreading and knowing who the chief judge is, but in making persuasive legal arguments.

I'll watch for the Hawaii amicus brief and post when it becomes available, but I suspect they will rehash the same arguments, though I'd hope they'd include some documentation as to why the residents of Hawaii are particularly unsuitable to shoulder the burden of responsibility of bearing arms. I'd really like to read that. In the meantime, if you happen to be an elderly person, and ever want to legally bear arms in public for self-defense, I'm pretty sure you're going to have to move to one of the 43 states where the Second Amendment is recognized as meaningful.

The latest filings and court actions can be found on the Michel and Associates website: http://michellawyers.com/guncasetracker/perutavsandiego/

Brady brief:

http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v-San-Diego_Brief-of-Amicus-Curiae-Brady-Center-to-Prevent-Gun-Violence-in-Support-of-Rehearing-En-Banc.pdf

Police associations brief:

http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v-San-Diego_Brief-in-Support-of-Rehearing-En-Banc-by-Amici-Curiae-California-Police-Chiefs-Association-and-California-Peace-Officers-Association.pdf

Okay, Hawaii filed their amicus brief today, and it is available to read here: http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v-San-Diego_Amicus-Curiae-Brief-of-the-State-of-Hawaii-in-Support-of-Rehearing-En-Banc.pdf

I'm disgusted. I'm truly disgusted. You need to read this garbage brief to see the twisted (il)logic, cherry-picking of statistics, and inane specious arguments. It's really unbelievable. Plus no other briefs are rife with all the bold face type and the underlined bold face type that stands out on every page of the Hawaii brief. It looks amateurish to me.

A couple of examples.

The first section is entitled: "The Second Amendment Does Not Protect a Right to Carry Guns in Public, Openly or Concealed". I'm surprised they haven't called for an end to all possession outside the home (hunting, range shooting, driving to range/hunting, etc.), where you'd have to have the firearm delivered to your house by law enforcement and never allow it past the portal of your door. That makes as much sense. They use the New Jersey, Maryland, and New York circuit cases (as the other briefs do) to argue that the Peruta panel got it wrong. As I wrote above, judge O'Scannlain disposed of those fallacious circuit arguments in the Peruta decision, and none of the new briefs, including Hawaii's adequately address O'Scannlain's arguments on those points).

Their main argument is "public safety". One argument re public safety is that since Heller declared that long-standing laws prohibiting concealed carry in "sensitive places" (like government buildings, schools, etc.) are "presumptively legal" MEANS [yeah, that's fun...] that such a ban from those locations are legal BECAUSE guns are dangerous and people can get killed or injured either by intention or accidentally, THEREFORE EVERYWHERE OUTSIDE THE HOME IS A SENSITIVE PLACE, and thus no firearms ought ever be allowed (presumably they make exceptions for the "only ones" in the employ of the government monopoly of force). I kid you not. EVERYWHERE is a "sensitive place". They wrote that. In a legal brief. In an appeal to the United States Ninth Circuit Court of Appeals. This from the best and brightest the state Attorney General's office has to offer. And we wonder why we're in such deep doo doo here re our Second Amendment rights?

One more. They argue that since even in jurisdictions where concealed carry is legal (and thus suffering all the extra murder and crime that their bogus studies claim), people are generally prohibited from carrying in bars or restaurants where intoxicating beverages are sold, BECAUSE IT IS DANGEROUS for intoxicated people to have firearms. People who are intoxicated can go anywhere in public. Therefore, NO ONE ANYWHERE IN PUBLIC SHOULD EVER BE ALLOWED TO CARRY A FIREARM BECAUSE THEY MIGHT BE INTOXICATED. I sh*t you not. I couldn't even make up crap like that.

And it continues on. 
.

.....It looks amateurish to me.

....This from the best and brightest the state Attorney General's office has to offer. And we wonder why we're in such deep doo doo here re our Second Amendment rights?

One more..... I sh*t you not. I couldn't even make up crap like that.

And it continues on. 

Who knows, maybe that will make refuting their arguments easier....

I can't believe that guy went to Havard and Hawaii pays him over 200k a year to file some crap like that.

Who knows, maybe that will make refuting their arguments easier....

God I hope so.  Their arguments are so asinine that it makes the whole thing that much more frustrating.....

God I hope so.  Their arguments are so asinine that it makes the whole thing that much more frustrating.....

Do you really think their arguments are really that asinine?  This guy is a Harvard graduate

Another amicus brief filed late yesterday by The Law Center to Prevent Gun Violence. Nothing particularly new in terms of arguments for en banc and the claims of errors made by the Peruta panel majority. Baker is mentioned several times, including in the section noting one of the justifications supporting en banc (re)hearing is if a case is of "exceptional importance", and since all the citizens of Hawaii would be gravely endangered if more than four (4) people were granted CCW licenses in 15 years, en banc rehearing and overturning Peruta is of "exceptional importance".

Today, December 24, is the final day for amicus briefs to be filed, so there might be more by the end of the day, but apparently most of the lawyers wanted to get at least a one day early start on their holiday. We haven't seen any briefs from the Peruta camp yet, so I'm hoping they are going to file something today, maybe even including something to counter the "everywhere outside the home is a "sensitive place"" and other absurd arguments in the Hawaii brief.

http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v-San-Diego_Brief-of-Amicus-Curiae-The-Law-Center-to-Prevent-Gun-Violence-in-Support-of-Rehearing-En-Banc.pdf

LOL, if they want to include"everywhere" outside the house, I'd  say "everywhere"  includes 49 other States, the majority of which have demonstrated "everywhere" is NOT a sensitive area.

One Brief of Amici Curiae Firearms Policy Coalition, Inc et al Opposing Rehearing En Banc was filed late on the 23rd, and two were filed on the early evening of the 24th: Appellants’ Opposition to Sua Sponte Rehearing En Banc and Appellant’s Response to Petition for Rehearing or Rehearing En Banc Regarding Intervention.

Interesting to note the members filing the first brief: FIREARMS POLICY FOUNDATION, INC.: CALIFORNIA ASSOCIATION OF FEDERAL FIREARMS LICENSEES, INC.; PINK PISTOLS; GUN RIGHTS ACROSS AMERICA; LIBERAL GUN OWNERS ASSOCIATION; MADISON SOCIETY, INC.; HAWAII DEFENSE FOUNDATION; FLORIDA CARRY, INC.; ILLINOIS CARRY; KNIFE RIGHTS FOUNDATION, INC.; AND SECOND AMENDMENT PLAINTIFFS OPPOSING REHEARING EN BANC. Seems like a fairly diverse cross-section of citizens. They basically argue that in the past the AG has argued in court, several times, that they (the state and AG) cannot be sued (in essence "we don't have standing") in cases re CCW denial because the state has nothing to do with issuing the licenses, which are the sole province of the county sheriffs and/or local police chiefs. Peruta only effects sheriff Gore's implementation of the CCW requirements in San Diego county, and there is nothing the state could legally do to remedy any decision against Gore, and thus ought not have standing.

http://michellawyers.com/wp-content/uploads/2010/11/Peruta-v.-San-Diego_Brief-of-Amici-Curiae-Firearms-Policy-Coalition-Inc-et-al-Opposing-Rehearing-En-Banc.pdf#page=1&zoom=auto,-218,547

The brief for Peruta by Michel and Associates re intervention by AG Harris argues (as the above brief does) that the state has no statutory basis for intervention, because the decision only effects county policy, in which the state has, and could have, no role. They also state that they do not object to intervenor status being granted on other grounds ("timeliness" and "independent ground for jurisdiction").

http://michellawyers.com/wp-content/uploads/2010/11/Peruta_-Appellants-Response-to-Petition-for-Rehearing-or-Rehearing-En-Banc-Regarding-Intervention.pdf

The brief for Peruta by Michel and Associates re sua sponte rehearing en banc of the Peruta decision basically argues 1. that the panel got it right, and that the right to bear arms does exist outside the home, and 2. that law-abiding citizens may not be denied the right to bear a firearm outside home for self-defense (which is what Gore's policy did for almost all applicants for CCW licenses in his jurisdiction). Therefore, because the panel decision was correct, there is obviously no need to rehear it en banc.

http://michellawyers.com/wp-content/uploads/2010/11/Peruta_Appellants-Opposition-to-Sua-Sponte-Rehearing-En-Banc.pdf

None of the briefs against intervention or rehearing the whole question en banc specifically addressed or countered the arguments presented in the pro-intervenor pro-en banc hearing of Peruta, but rather just made their arguments against.

Now... we wait. And wait. And wait. See ya in the Spring... maybe. And if it does go en banc... 2017.

[Edit 12/26/14 4:30PM: Added links to briefs. Sorry about leaving those out.]