By Aaron J. Bailey
“Attorney General Kamala D. Harris Appeals Ninth Circuit Concealed Weapons Permit Ruling”; or so the AG’s pretty little press release says. Legal issues are always tricky. On the one hand, simplistic answers are often wrong; the law can be complicated and nuanced. On the other hand, I can’t exactly call a block of dense legalese “helpful”. I’ve been working in the legal field (note: I am not a lawyer) for five years now, and I’m a California gun owner (which practically requires a law degree these days), so between the two I’ve got a bit of practice “translating” legalese. I’m going to try to do that here . . .
Harris’ press release is misleading, to say the least. Neither the State of California nor the Attorney General’s office were parties in Peruta v. County of San Diego, so they legally cannot appeal. They’re not a part of the case, so their desires are irrelevant. However, there’s a legal trick found in the Federal Rules of Appellate Procedure (“FRAP”…let the Battlestar Galactica, FRAPpuccino, and obscene jokes begin) that allows certain kinds of parties to ask the court for permission to be added to a case in certain situations (Rule 24). I won’t bore you with the details, but basically it allows the government or an interested party to potentially step in when their interests are on the line and the actual parties to the lawsuit aren’t protecting those interests. This is what Harris did.
Essentially, she’s asking the Court, “Pretty please, may I join the case?” because of San Diego Sheriff Gore’s decision not to pursue a further appeal. It’s worth noting that the Brady Campaign and LCAV also filed similar documents, though no one seems to have noticed yet. If the court approves her Intervenor motion, they’ll add her to the case and file her proposed Petition for Rehearing en banc.
Now, part of the confusion comes from the fact there are two kinds of rehearing. A normal Petition For Rehearing is a formal way of telling a judge “I think you messed up, why don’t you try again?”. They usually fail, for obvious reasons–you’re asking the judge who made the ruling to say “oops!” and undo their own ruling! However, in certain exceptional circumstances, the Circuit Court can decide to rehear the case with a larger panel. (Usually all the judges in the Circuit, but the 9th is so big we do 11 judge panels). That’s what we call “Rehearing en banc”.
En banc is ironically kind of like California’s CCW policy; they’re for exceptional and rare cases, no one has a right to have one, and they’re heard or denied entirely on the Circuit’s whim. Any judge (except the three judges on the Peruta panel) can call a vote, and if a majority of the judges in the Circuit agree, they can rehear the case en banc. All Harris’ petition does is asks the court “Pretty please will you rehear it?”.
Harris has essentially asked the court “pretty please may I join the case? and if so, pretty please may I ask you to change your mind?”. In practicality, even if she wins this petition, the risk is pretty much the same as it was yesterday; the Ninth Circuit can decide, upon a majority vote, that they want to rehear the case en banc. IF the court allows her Petition for Rehearing, the mandate (formal order) in Peruta will be automatically stayed until the Court rules yea or nay on the Petition for Rehearing. If she’s added to the case, but loses her petition for rehearing en banc, she could then ask the Supreme Court (“pretty please?”) to hear the case.
How does this affect you right now? In practical terms, not much. If your local sheriff has said “we’ll have to wait and see” (like Los Angeles county), they’ll still wait and see. If your sheriff has said “we’ll put your applications in a file until Peruta stands or falls” (like San Diego county), they’ll still keep yours in their little file. If your sheriff said “forget it, we’ll issue!” (like Orange county), they’ll probably delay a couple weeks until this is resolved one way or the other before deciding.
Bottom line: Harris is throwing a hissy fit and trying to save face. (“I tried my best to stop the evil guns!”) Her press release sounds super-serious, but in truth she’s just asked the court nicely to change their mind. We’ll have to wait and see what the court says. Until then, the more people applying for permits, the harder it will be for the Court to ignore us.