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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