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.

80 Responses to CA AG Harris’s (Mostly) Phony Appeal Announcement

  1. why is she doing this? just for publicity? I have been made to understand that if this goes bad for the antis and goes before the supreme court all the country could be forced to adopt shall issue policy. and if they do the en banc thing and the 9th rules good cause a-ok then does that case go before scotus?

    • If the panel decision is reversed, the probability of Supreme Court review is substantially reduced because there will no longer be any “split” in authority as to the propriety of “may issue” restrictions on CVCW issuance. If en banc review is denied, or upon review the decision affirmed, the probability of Supreme court review is (relatively speaking) pretty high. (I say relatively speaking because obtaining a grant of certiorari from the Supreme court is less than once in a blue moon, even on a good day.)

      • There’s still a split with the 7th Cir., though admittedly one abberant Circuit can much more easily be ignored.

        • I’ve had a number of discussions about whether Moore constitutes a “split”, and in my opinion it does not. Unlike the cases in the 2, 3, and 4TH Circuits, all of which addressed “may issue” regimes for issuance of CCWs, the 7th Circuit was dealing with a “no issue” state. It did not order the State to adopt any form of carry, rather it only said that the state could not constitutionally enforce its total ban. Although it conflicts philosophically and analytically with the other circuits, its actual legal holding does not create a conflict. Notably, the Supremes have turned aside several requests for cert after Moore, including Woolard. Only Drake remains pending. The Ninth Circuit was the last to address “may issue”–no other circuit includes states with may issue regimes. And I think SCOTUS was waiting for the Ninth to weigh in on the issue before taking it up. Therefore, if Peruta is reversed, there will be no “split” as to the constitutionality of “may issue” concealed carry laws, and the odds of the Court taking Drake are seriously reduced.

        • It really stretches credulity to consider Hawaii a “may issue” State, but people still do it somehow.

    • A number of SCOTUS justices are no spring chickens, so anything that might influence them to delay taking up a “bearing arms” case by another year would be a welcome thing in itself, but with the circuit what it is, Peruta may actually get reversed too, the benefits of which have been explained by Mark N. If Peruta does not get a rehearing, when justices have a Drake conference in the spring, they will have a solid and finalized circuit split to take into account – not an ideal situation if you are not big on common people bearing arms. The only conceivable strategic downside to seeking a rehearing would be the fear that a reversed Peruta can be appealed to SCOTUS, but someone must have figured the upside of challenging it now is bigger than this particular possible downside.

      Political considerations may be at play too. Can Ms. Harris afford to look like she is not standing up for her core consitutients’ beliefs in such an important matter? People comment on Ms. Madigan of Illinois not appealing to SCOTUS last year, speculating that she was “afraid” of the possible national outcome, but let’s remember that she did appeal to the full circuit and got denied, that Illinois did adopt a carry law, and that she did get an extension that would have allowed her to appeal to SCOTUS should the legislators have failed to pass a carry law in time.

  2. It might be desperation. It might be theater. Or it might be that the fix is in. We won’t know for a while.

    But being this is California, the most powerful anti-gun state in the world and will blow your Second Amendment rights clean off, you’ve gotta ask yourself a question: “Do I feel lucky?”

        • I’ve been relying on “Obusha” and “Chocolate Sock Puppet”. “Obeyme” is MUCH better and more on-point.

        • Be careful, William. POTUS has a phone and he has a pen. What he’s going to write on that phone I have no idea.

        • He’d need a magic marker for the phone. What would he write on it? Probably something like, “Really Important Executive Phone Line”.

          I’m sure someone else can do better than that. I’m really not feeling too into it.

  3. Thank you for the update Aaron.
    I was also looking at this with a large amount of skepticism. Nice to see that my opinion is somewhat accurate.

    • Glad to help! I had to do a crash course of FRAP, but hey, I’m the kind of weirdo who enjoys that kind of thing. 😉

      • I enjoy it to so you aren’t the only weird one.
        Once you start learning about the political and law process I think you need to be weird, or crazy. 🙂

      • Nah, that’s like a copy of river song from that acid mining episode, but after the cloning goo got all wonky.

    • I am watching Dr. Who right now, in fact… catching up. Is it just me or did it become less anti-gun by the time River Song becomes a more prominent character?

      While not a beauty like most of the women on that show, she is better a bit that Harris! And she can shoot

      • Don’t forget about Captain Jack Harkness! He had no problem going PEW PEW if the circumstances called for it, pun intended.

  4. It’s all for ratings and getting her name out there. On the unfortunate side, this is what happens when people sit back and let their Liberties get taken away 1 at a time until the people have finally had enough. What’s next, you can’t wear shirts with American Flags on them… Oh wait, they already did that. You guys out there in California better fight your asses of and get these Liberties back because we are fighting our assess off to keep what we have and get what we lost. We can’t let the east coast fall into enemy hands… Fight the fight people, you have our support!!!! Semper Fi

  5. I’m……………………………………………….waiting………………………..for…………………….Diane…………………..to………………………………………………………………………..die

    Only then can CA be”free at last, free at last,

  6. 1) She is running for governor eventually

    2) Free publicity

    3) She is being sued over the approved gun list so the writing is on the wall

    4) She is trying to run out the clock long enough for Barry to appoint her to a cushy lifetime judgeship

    5) Although I don’t think she swings this way, I’d take her over Shannon

  7. “4) She is trying to run out the clock long enough for Barry to appoint her to a cushy lifetime judgeship”

    At her age, I think the clock has already run out on that one.

  8. Wait?! This is great, and here is why:

    The 2nd amendment has been more or less ignored or sidestepped for centuries now, think NFA: couldn’t make it illegal, so they taxed it.

    All of a sudden they start asking to take away all the guns, chastising the shooting public and what happens:
    1) Illinois gets concealed carry
    2) California get a CC decision
    3) States are passing pro-CC legislation
    4) Multiple “F the federal gov’t” laws for 2nd amendment have been passed/proposed in Kansas, Texas, Idaho, Georgia, ect, ect (eg, silencers in-state, no confiscation by FEMA)
    5) AR-15 sales *doubled* last year
    6) Anti-states have passed obviously unconstitutional laws creating felons out of regular moms and dads, which is destined to completely back fire
    7) Judge in NY says counting rounds is a violation of 4th amendment (support that judge for sure)
    8) Slide fire is approved by ATF, as is that SIG wrist brace “joke”
    9) Shooting ranges are packed with people who first shot a gun in the last 2-4 years
    10) NFA registration wait time doubles after hiring more staff

    They didn’t follow the “boiling frog” rules, they threw us directly in the water instead of letting it heat up slowly. Backed by lies, they are destined for failure.

    Imagine if this goes to the supreme court and CC is legal in all 50 states, plus dependencies like Puerto Rico and Iraq (wait what….oo, never mind). Additionally the idea of reciprocity must be acknowledged too; If I have a Texas CHL, I should be able to carry in California, no arguments (or allow non-resident registration). *United* States of America. States can make their own laws as long as they don’t contradict the Constitution and the BIll of rights.

    …… Kind of long winded, I know

    • This is an accurate picture. The harder they push the more press, the harder we push back.
      Also don’t forget the new generation of shooters. They all played Call of Duty etc.
      They now want what they played on the video game, brand awareness.

      • I just got back this evening from a conference at the Air Force Academy. . . . those kids LOVE GUNS from playing video games. It was very interesting talking to them about concealed carry and their obligation to defend the constitution.

  9. Keep is not equivalent to keep in the house and bear is not equivalent to bear on the battlefield. The lady’s looks are not my business. And by the way, chocolate does not always mean milk chocolate or dark chocolate. There is such a thing as white chocolate and, the earlier poster did not specify as to which type of chocolate he or she was referring, in the middle school attempt to pull off sock puppet jocularity. I may have gotten a C in friend but I got an A+ in enemy.

  10. You can be sure one of the uber liberal 9th circuit judges will ask for an en banc on this decision before the March 7 deadline. The stakes are just too high to let it go for them.

    • The way I see, Harris’ motion has no bearing. She could have just requested a liberal judge to do her a favor. Still need a majority of the court to agree to hear an en banc. Then Judge Kozinski (likely to uphold) + 10 judges drawn by lot. So still a gamble, though more likely to draw unfavorable judges.

      • See below- the more I read what other well versed legal writers have to say, (including Koppel at Volokh, and Ralph here, etc) the more I believe the 9th has brought great credit upon itself for this decision, as an example of reason and the rule of law, vs the reputation this court has for being too “leftist”.

        In fact, I’d be inclined to say Ms Harris has insulted this Court especially when it becomes clear she turned down being invited as a party in the first place.

        No wonder Governor Brown is silent. This is not his first rodeo…

  11. I’m not a lawyer either and this is just my opinion, but I fully expect the Ninth to take this thing up en banc given the following:

    1. It’s an important case
    2. The Ninth Circuit Court of Appeals is stacked with liberals who likely strongly disagree with the panel’s decision
    3. The Ninth Circuit Court of Appeals has a sizable number of Obama appointees as can be seen at: http://www.ce9.uscourts.gov/vacancies/90-table.pdf I have a feeling a few phone calls have already been made.
    4. The California AG is a friend of Obama’s and has a big profile.
    5. Other circuit courts of appeals have ruled differently in the past.

    I hate to be a wet blanket, but this really is the kind of case that is often heard en banc. I know through the separation of powers would dictate that 3 of the points above should not have any bearing. Unfortunately the real world tends to work differently.

    • The largest circuit court in the country- being abused as a petty political plaything by a couple of lightweight politicians who won’t be around in a couple years?

      Imagine if this does get to en banc, and delayed – how many women might lose their lives, who would have been able to defend themselves, or been defended by others… for lack of common-sense self-defense by CCW.

      I wonder how that will play out in the calculation, if ever, or discussed by the StateRunMedia, in re: the Chicago Machine, and San Fran Limo Libs pushing Ms Harris for payback.

      I really hope you are wrong.

  12. Anyone know when the appeal is going to happen or gets rejected? Apparently, most Sheriffs are waiting for the appeal to happen. In the meantime, it’s on Status Quo meaning nothings going to change at all.

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