It has been six months since a divided three judge panel of the 9th Circuit Court of Appeals published a decision saying that a desire for self-defense constitutes "good cause" for the issuance of a permit to carry a handgun concealed in public and held that the policy of San Diego Sheriff Gore in not accepting self-defense as good cause was unconstitutional. Sheriff Gore decided not to appeal the decision. The case is Peruta v. San Diego.
Attorney General Kamala Harris quickly filed a motion to intervene in place of Sheriff Gore, concurrent with a petition for an en banc hearing of the case before eleven active judges of the 9th Circuit Court of Appeals. The next day, the court issued a stay of the case pending a decision in the en banc proceedings.
The 9th Circuit Court of Appeals even created a page at its website dedicated to the Peruta v. San Diego appeal with an invitation at the top of the page in big red letters to "Please check this website regularly for updates."
The website hasn't been updated in three months.
There has been but one Second Amendment case in in the 9th Circuit in which en banc petitions have been granted – Nordyke v. King, which involved an Alameda County California ordinance prohibiting gun shows on the Alameda County Fairgrounds. In the 13th year of litigation, during oral arguments of the final en banc hearing, the lawyers for the County suddenly "discovered" a gun show exemption in its municipal ordinance to its gun show ban allowing for gun shows to take place at the Fairgrounds. I kid you not. Nonetheless, the time frame for deciding on the petition in this case is worth comparing.
It took four months and seventeen days for the 9th Circuit to grant the en banc hearing petition in the Nordyke v. King case once the response to the en banc petition was filed.
On March 26, 2014 the attorneys for Peruta filed a non-opposition to the motion by AG Harris to intervene concurrent with an opposition to an en banc rehearing. It has now been four months and eighteen days since the response to the en banc petition has been filed in the Peruta case.
It took six months and five days from the time the en banc petition was filed to the date the court announced that the en banc petition had been granted in the Nordyke v. King gun show case.
We have now reached the point where there is no longer an excuse for a delay. The Nordyke case was a complex case with over 12 years of litigation behind it. The Peruta case by comparison is so simple that it bordered on there not even being a case for the courts to decide. Peruta did not offer any legal basis for him to win his case. That was actually one of the reasons Peruta lost in the district court. Senior Federal Judge Irma Gonzalez (now retired) in effect said that if Peruta had a case then she couldn't find it and it wasn't her job to make Peruta's case for him.
Ironically, that is what two of the three judges of the 9th Circuit Court of Appeals eventually did. Peruta had no case and so Judges O'Scannlain and Callahan argued his case for him.
Which is reason enough for the en banc petition to be granted.
Granting the en banc petition doesn't mean the case is over. It means that en banc briefs will have to be filed by both sides, oral arguments scheduled and heard and finally the case taken under submission for a decision followed by both sides filing notices of decisions in cases from other circuits which were decided after the case had been taken under submission. In the final Nordyke en banc rehearing it took an additional six months and four days for the en banc panel to reach a final decision.
And, of course, once the en banc panel has published its final decision we still have to wait and see what the US Supreme Court has to say on the subject. If Peruta loses an en banc rehearing, and his lawyer has already said that is the likely outcome, then he will have 90 days to file a petition with the Supreme Court. A petition which will undoubtedly be denied.
In the slim to none chance that AG Harris loses the en banc hearing, it is almost certain that the Supreme Court will grant her petition in which case the Peruta decision will once again be stayed until SCOTUS has its final say. That could take another year or more.
Sadly, there is no time limit imposed on the 9th Circuit Court of Appeals. If the court wants to postpone consideration of the en banc petition for years to come, it can.
Charles Nichols – President of California Right To Carry
http://CaliforniaRightToCarry.org
--
Attorney General Kamala Harris quickly filed a motion to intervene in place of Sheriff Gore, concurrent with a petition for an en banc hearing of the case before eleven active judges of the 9th Circuit Court of Appeals. The next day, the court issued a stay of the case pending a decision in the en banc proceedings.
The 9th Circuit Court of Appeals even created a page at its website dedicated to the Peruta v. San Diego appeal with an invitation at the top of the page in big red letters to "Please check this website regularly for updates."
The website hasn't been updated in three months.
There has been but one Second Amendment case in in the 9th Circuit in which en banc petitions have been granted – Nordyke v. King, which involved an Alameda County California ordinance prohibiting gun shows on the Alameda County Fairgrounds. In the 13th year of litigation, during oral arguments of the final en banc hearing, the lawyers for the County suddenly "discovered" a gun show exemption in its municipal ordinance to its gun show ban allowing for gun shows to take place at the Fairgrounds. I kid you not. Nonetheless, the time frame for deciding on the petition in this case is worth comparing.
It took four months and seventeen days for the 9th Circuit to grant the en banc hearing petition in the Nordyke v. King case once the response to the en banc petition was filed.
On March 26, 2014 the attorneys for Peruta filed a non-opposition to the motion by AG Harris to intervene concurrent with an opposition to an en banc rehearing. It has now been four months and eighteen days since the response to the en banc petition has been filed in the Peruta case.
It took six months and five days from the time the en banc petition was filed to the date the court announced that the en banc petition had been granted in the Nordyke v. King gun show case.
We have now reached the point where there is no longer an excuse for a delay. The Nordyke case was a complex case with over 12 years of litigation behind it. The Peruta case by comparison is so simple that it bordered on there not even being a case for the courts to decide. Peruta did not offer any legal basis for him to win his case. That was actually one of the reasons Peruta lost in the district court. Senior Federal Judge Irma Gonzalez (now retired) in effect said that if Peruta had a case then she couldn't find it and it wasn't her job to make Peruta's case for him.
Ironically, that is what two of the three judges of the 9th Circuit Court of Appeals eventually did. Peruta had no case and so Judges O'Scannlain and Callahan argued his case for him.
Which is reason enough for the en banc petition to be granted.
Granting the en banc petition doesn't mean the case is over. It means that en banc briefs will have to be filed by both sides, oral arguments scheduled and heard and finally the case taken under submission for a decision followed by both sides filing notices of decisions in cases from other circuits which were decided after the case had been taken under submission. In the final Nordyke en banc rehearing it took an additional six months and four days for the en banc panel to reach a final decision.
And, of course, once the en banc panel has published its final decision we still have to wait and see what the US Supreme Court has to say on the subject. If Peruta loses an en banc rehearing, and his lawyer has already said that is the likely outcome, then he will have 90 days to file a petition with the Supreme Court. A petition which will undoubtedly be denied.
In the slim to none chance that AG Harris loses the en banc hearing, it is almost certain that the Supreme Court will grant her petition in which case the Peruta decision will once again be stayed until SCOTUS has its final say. That could take another year or more.
Sadly, there is no time limit imposed on the 9th Circuit Court of Appeals. If the court wants to postpone consideration of the en banc petition for years to come, it can.
Charles Nichols – President of California Right To Carry
http://CaliforniaRightToCarry.org
--
Send us your news story by putting the Headline in the Subject and the Article in the Body of the email by clicking on this link.
Follow on Twitter @AmericanNewsSer
No comments:
Post a Comment