Appeal or Not to Appeal: That is the Question

Immediately after the the historic Ninth Circuit ruling that the second amendment right to bear arms extended outside of the home, it was reported that an appeal to an en banc panel of all 11 justices might be in the works. Securityinfowatch.com quotes Bob Egelko of  the San Francisco Chronicle as reporting, “James Chapin, the San Diego deputy county counsel who defended the permit system, said the county will ask the full appeals court for a rehearing before an 11-judge panel.” It appears that Mr. Egelko either misunderstood Mr. Chapin, or that Mr. Chapin changed his mind . . .

The LA Times reported that:

Officials in San Diego County said they may seek a rehearing before a larger 9th Circuit panel,

A press release from the 14th of February says that the Sheriff’s office is “reviewing and studying the decision” which is consistent with the LA Times version of events.  This seems prudent, considering that Sheriff Gore is up for election this year, in a relatively conservative county.

Noted lawyer and second amendment legal guru David Hardy wrote that an en banc appeal can be asked for by any justice on the Ninth Circuit.  There are currently 27 justices on the Ninth Circuit, the largest in the nation.  No appeal to the Ninth Circuit decision is yet shown on the guncasetracker site of michellawyers.com, the firm who handled the appeal that resulted in the Ninth Circuit ruling in favor of the right to bear arms outside the home.

Rob Morse at slowfacts.wordpress.com writes that Sheriff Gore told him that he wanted to issue CCW licenses:

He said he wanted to issue licenses so citizens could carry a concealed weapon in public.  He really wanted to.  That is what he told me.  He said, sadly, that California law prevented him from granting those licenses.

There is no doubt that Sheriff Gore can issue licenses if the Ninth Circuit ruling is not appealed.  In fact, there was little if any doubt before the Ninth Circuit ruling.   James Chapin, the deputy counsel who works for San Diego County and, presumably, Sheriff Gore, will certainly consult with his clients before they make a decision to appeal or not to appeal.  Attorneys are hired guns, to use a well worn but appropriate metaphor.  They are to do what their clients wish, not the other way around.

I suspect that some Justice on the Ninth Circuit will alleviate the potential embarrassment of Sheriff Gore by requesting an appeal for an en banc panel.

It hasn’t happened yet. The justices of the Ninth Circuit have until the 6th of March to do so.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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31 Responses to Appeal or Not to Appeal: That is the Question

  1. avatarSixpack70 says:

    More taxpayer money will probably be wasted to try to infringe on CA resident’s rights. It’s sick that we are paying them to screw us over.

  2. avatarHannibal says:

    “He said he wanted to issue licenses so citizens could carry a concealed weapon in public. He really wanted to. That is what he told me. He said, sadly, that California law prevented him from granting those licenses.”

    What a load of crap. Typical politician. They’ll talk about how terrible it is that they’re mugging you while they shake the change and rights out of your pockets.

    • avatarPeteRR says:

      The Kern County sheriff doesn’t seem to have a problem accepting self defense as good cause, so yeah Gore is BSing us,

    • avatarMark N. says:

      The Sheriff of Shasta County, of Tehama county, of Butte County, and even of Sacramento County, apply a rule, consistent with the Peruta decision, that the only good cause needed for issuance of a CCW is self-defense. I am reasonably certain that the same rule is followed in Del Norte, Modoc, Humboldt, Trinity and Siskiyou Counties. The stupidity of the rule enforced by Gore, Baca, and others of their ilk, the same as the rule in Maryland and New Jersey and NYC, that one must show a need greater than that of the general public, is a conclusion that the general public does not have the right to bear arms, except when government issues special dispensation. gore’s statement that he wanted to issue but could not is utter hogwash–intended solely to protect his reputation with his constituency, the voters of San Diego County.

    • avatarRobGR says:

      Yep, I can smell that BS all the up in OC, Sheriff Gore does not want armed citizenry. His history, whether at Ruby Ridge or as SD Sheriff, is testament to his position. Laughable. Yeah, he really, really, really cares…..

  3. avatardwb says:

    Is the decision even up to the Sheriff? Who is bankrolling the appeal?

    This was a really tight opinion. No good options for San Diego – if they go en banc and get the ruling overturned, then SCOTUS overturns that (and the CA9th is the most overturned). checkmate. If they do not appeal, oh no Kalifornians with guns! In the streets!

    My personal bet is that they do not appeal and find some other way to weasel out of it, which would subject them to another lawsuit, but delay delay delay.

    • avatarHannibal says:

      Smart move for them would be to go back to unloaded open carry and hope that no one notices their little oopsie.

      • avatarMark N. says:

        UOC is worse than useless. The soccer moms all call the police when they see MWG!, an unloaded gun is no better than a poorly shaped club, and you still cannot carry inside a school zone unless you put it in a locked container (unloaded of course). We’ve been there, done that, and we ended up with the Legislature passing a ban. Pass.

        Of course, because it is so bad, that might encourage the Legislature to reverse course and let those who carry openly continue to be harassed by the police. During a period of open carry protests during 2012, there were innumerable MWG! calls that resulted in outrageous over-response by the police, with five or six squads showing up, sometimes with guns drawn. The fuzz would disarm the carrier, perform an “e” check (named after a former subsection of the Penal Code) to ensure that the gun was unloaded, and generally make fools of them demanding to know why the individual had a “need” to carry a gun.

      • avatarDMZ says:

        The court said the gun had to be ready for use, so I think UOC is out now too.

  4. avatarjwm says:

    Sheriffs issue permits all over CA. He’s full of sh!t if he says the law won’t allow it.

  5. avatarExcedrine says:

    I’m not holding my breath.

    He’ll appeal, for sure. What I’m not so sure about is whether the full 11 justice panel will rule as the 9th Circuit did (in this case).

    • There is a significant chance that the Ninth Circuit will not grant an en banc appeal. They get to vote on it, and there are positives and negatives in it for both sides.

      Most appeals for an en banc hearing are not granted. Something like 95%.

      • avatarMark N. says:

        But a case of such high importance as this one tips the scales. Unless that is that the judges who vote take the time to read and digest O’Scanlain’s opinion–and that may be enough to persuade them that the right decision has been reached and no more review need be done. I would not hold my breath. I have a feeling that Chief Justice Kosinski wants to get his name on a case like this (fortunately, he is 2A supporter).

  6. avatarDirk Diggler says:

    maybe the justices will ask but. . . .deep down, they know the SCOTUS is waiting for this. The State of IL did not appeal the 7th Cir. so theoretically, this appeal would be the one to take on the 2nd, 3rd, and 4th circuits. . . . just saying. Judges don’t like to get overruled either.

    I am really hoping they appeal. Yes it drags on the proceedings, but it also makes it easier for SCOTUS to get a good case before someone on the right passes away and Barry gets a nomination.

    • avataruncommon_sense says:

      Can the plaintiffs in the 2nd, 3rd, and 4th Circuits still appeal to the U.S. Supreme Court? If so, how would the recent 9th Circuit decision play into that?

      And what about other counties and states in the 9th Circuit? Can residents of Alameda County (California) or the state of Hawaii now demand concealed carry licenses because they are in the 9th Circuit?

      • There are several cases in the wings that may or may not be taken by the Supreme Court.

        This case makes it more likely that they will take one, and they might decide to roll Peruta into the case they take. Or not.

        • avatarMark N. says:

          I agree that this decision makes it very likely that the Supreme Court will grant review in a 2A carry outside the home case in the very near future, if not this one (if no appeal to SCOTUS is sought), then one of two or three that they have been holding for just this moment. Now that all the circuits that have “may issue” states have ruled, and since there is a clear split as to what constitutes “good cause” for issuance of a CCW in jurisdictions that otherwise prohibit or severely restrict open carry, the pieces are in place for cert.

      • They can use this case once it becomes official. Most likely it will not go into effect until the appeal process is finished. If no one appeals, it should go into effect within 60-90 days, or so I have read.

  7. avatarSteve says:

    They appeal: They MAY win, but it will then go to SCOTUS, and they can be set back permanently as opposed to just in their little world.

    They don’t appeal: The ruling really only pertains to the west coast, doesn’t go to SCOTUS, and they can keep their anti-gun ways.

    • avatarMark N. says:

      If they do not appeal, then anyone applying for a CCW in any county that imposes “good cause” restrictions greater than mere “self-defense” can sue in federal court, win a slam dunk case (because all California federal courts in the district will follow the decision) and get his/her attorney’s fees, thus forcing that county to follow the Peruta decision. Soon, every county will be virtual “shall issue,” and those sheriffs and city police chiefs who have long opposed the issuance of CCW permits will have lost for all time.
      If they are unalterably opposed to CCW, then they have no choice but to appeal, first for en banc (any shot not taken is an opportunity lost) and then to SCOTUS. The ONLY countervailing consideration, about which some have speculated, is that the east coast interests, having decided the battle for California is lost, will do anything they can to avoid, as long as they can, any case reaching SCOTUS, or at least until the composition of the court is changed to one more inclined to a “favorable” outcome. Personally, I don’t think review at this point can be avoided–there are other cases in the pipeline, and failing to appeal Peruta will confirm the existence of a fundamental circuit split. If Peruta does not go up, then an east coast case, probably from New Jersey, will likely go up. Again, under a game theory, there really is no viable option to the gun banners but an appeal of Peruta, at least to an en banc panel, with a re-evaluation thereafter if en banc is declined or the decision is affirmed.

  8. avatarUSMC Janitor says:

    Appealing is not a forgone conclusion.
    If they appeal this is a perfect case for gun guys to take all the way to SCOTUS. Imagine the pressure these guys are getting from NY, NJ, etc, etc and all the politicians out there.

    They all know this is coming. But delay and hope the winds change is the order of the day.

    Much like in Illinois when the 7th circuit ruled on Moore/shepard the word was there was huge pressure NOT to take it to SCOTUS…. Chicago/Illinois has had some of the worst laws challenged and lose in court. taking these things to SCOTUS makes them nation wide and will make bloomberg’s head exploded. I am sure the folks in Cali are feeling the same pressure to issue permits, come up with some tough scheme for training, fees, etc and do it quietly.

  9. avatarrlc2 says:

    The state law is “may issue”. That means it is (was) up to each of the 58 counties to decide on a policy for good cause. The rural counties have interpreted this less stringently than the urban counties- as you might expect- those Sheriffs are elected officials, just like Sheriff Gore in SD, Sheriff Lee Baca in LA, and the Sheriff in San Fran- I wont comment on him other than to point out he has bragged that he has issued zero permits (except for folks like Senator Feinstein, in past).

    NOW, the 9th has ruled that self-defense is “good cause” all by itself. The Sheriffs still have the option to set various requirements- interview, background checks, fees, training classes, etc-
    and it would be likely that there will be differences- but Cal Guns Foundation has been running a Sunshine Carry guns effort, to document those different policies, and the numbers of permits, and along with a win in a lawsuit vs Sacramento County, that settled, that continues against Yolo County, for similar self defense as good cause argument, and a win over LA to take away the requirement that county residents first get an ok from their municipality, before applying to the county, Governor Brown has just vetoed another proposed law to make Oakland residents register in the city.

    http://blog.sfgate.com/nov05election/2014/02/19/brown-another-gun-law-wont-solve-oakland-violence/

    Hopefully Sheriff Gore is reading the tea leaves.

    • avatarRoscoe says:

      SDSO has been a good outfit over the years and very worthy of support. Duffy and Kolender each left their marks forging the SDSO into a department that exercised, as best possible, *good* law enforcement style and practices, particularly at the street level.

      I supported Bill Gore in the last election cycle, and may do so again depending upon the field and the demonstrated experience or lack thereof on display on the ballot. Gore has IMO done a good job continuing in the same footsteps as his notable predecessors; he was Bill Kolender’s choice to succeed as sheriff and to me that carried a lot of weight.

      However he is speaking out of both sides of his mouth, no doubt for political reasons, when he states that CA law prevents him from granting CCW licenses solely on the basis of the justification: self-defense. San Diego County Sheriff’s office has always been restrictive in its granting of CCW permits, just as it is now. With the current political winds in CA, and from the generally conservative LE perspective, I’m sure Bill Gore is in no hurry to change the status quo.

  10. avatarDave357 says:

    The Orange County sheriff’s office has announced new rules for issuing permits, although they caution the applicants, in so many words, that the rules will be reviewed again if San Diego successfully appeals.

    http://www.ocregister.com/articles/sheriff-602509-concealed-county.html

  11. avatarIdahoPete says:

    “Rob Morse at slowfacts.wordpress.com writes that Sheriff Gore told him that he wanted to issue CCW licenses: He said he wanted to issue licenses so citizens could carry a concealed weapon in public. He really wanted to. That is what he told me. He said, sadly, that California law prevented him from granting those licenses.”

    Sheriff Gore is a LIAR. His statement is a bald-faced LIE. California law permits a sheriff or police chief to issue a concealed carry permit at his/her discretion. Sheriffs in the rural counties commonly issue carry permits to citizens who pass the background checks. I lived in Lassen and Modoc Counties before I escaped the PRCa, and the sheriffs in those two counties LIKED to have armed honest citizens. they generally had 20 deputies to patrol a county the size of Connecticut, and they were happy to have people who took personal responsibility for their own safety.

    • avatarRoscoe says:

      Yep, that’s pretty much is how it is split in CA; rural counties loaded with independent self-sufficient citizens have much easier access to CCW permits, counties that are predominantly metropolitan, or overwhelming Democrat and “liberal”, well no such luck.

      The elected sheriffs reflect the local political winds, if you will, and CCW is just a small issue for them if they are in a heavy populated county. There are many much more pressing matters to address in large counties like San Diego.

      You are correct that if Gore chose to do so, he could relax the justification requirement.

      • avatarTim says:

        Please quit using the term “liberal” when they are statists. Liberal would mean they would allow or “liberate” people, rather than subjecting them.

        • avatarRoscoe says:

          In the colloquial sense, the label “liberal”, in my view encompasses those who consider themselves progressive elites, Democrats, and all those sheeple who want to fashion themselves as part of that crowd because they consider it the “in” thing to do, especially in socialist CA. I think many of these people are in fact statists, not because they *like* authority! but because they consider themselves “entitled”.

          So yes, I do use the term “liberal” a little pejoratively to describe the left leaning Democrats and their voting enablers (sheeple and elites) who have hijacked this state and run it into the ground. It’s kinda like some who call conservative gun owning NRA member Baby Boomer men OFWG’s, or on occasion, “gun nuts”.

          Comes with the territory of this struggle. Get over it! When those who are mostly liberals stop trying to “liberate” me from my guns, I’ll stop using the term so loosely.

  12. avatarGeorge L. Lyon, Jr. says:

    To be accurate, a judge can request a vote to rehear en banc and the active judges vote whether or not to rehear en banc. If a majority so vote, a 10 member panel plus the Chief Judge who is favorable to the Second Amendment would be enpaneled.

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