By Mark Norcross

When Sheriff William Gore of San Diego announced he would not seek further review of the Ninth Circuit’s three-judge Peruta decision, some believed that he had caved to pressure from our favorite special interest groups (Brady, MAIG, et al.). Conspiracy theorists among us thought he might have held back in order to avoid a possible review by the United States Supreme Court. A review that, given the currently-continued presence of the Heller/McDonald majority on the bench, could threaten the continued validity of all discretionary issue licensing systems throughout the country. And in particular, the may-issue concealed carry licensing schemes held as constitutional in the Second, Third and Fourth Circuit Courts of Appeals (that’s New York [Kachalsky], New Jersey [Drake]and Maryland [Woolard], respectively).  But that turned out not to be the case . . .

Instead, the California the state Attorney General – along with members of the Civilian Disarmament Industrial Complex – has gone all-in to seek reversal of the decision. TTAG deconstructed Kamala Harris’ tardy attempt—after prior refusals—to intervene in the case and be permitted to seek en banc review.  What is perhaps most remarkable about this sudden turn of events is that the AG had refused invitations to join in the briefing and argument in several of these cases. Indeed she’dd argued that the state was not a proper party because the Attorney General has no authority to direct the sheriffs’ exercise of discretion. Apparently the dissenting opinion, bemoaning the majority’s wholesale overturning of California’s carry law, has changed her mind.

But Ms. Harris is not alone. The Brady Campaign and the California Police Chiefs Association (along with the California Peace Officers Association) have joined in the fray. As a point of interest, the California Sheriffs Association, which had previously joined in amicus briefs in support of the may issue system, declined to participate in the most recent maneuver.

In order to be allowed to petition for en banc review, a requesting party must have “standing,” meaning a particular legal interest in the litigation. Generally this is satisfied simply by being a party to the case. But when an entity is a nonparty, a special showing of “injury” must be shown. To meet that requirement, the Brady Campaign contends that its members have suffered “a particularized harm”, specifically, “the increased risk of grave injury and fear of being subject to future gun violence because of the Court’s decision.”

They further claim to be acting on behalf of all of the residents of San Diego County who will also face such risks and suffer such fears, as there is no other party acting to protect these persons. This apparently proves that there was no collusion between the AG and Brady, as the AG claims to be acting on behalf of the people of the state of California, and filed before Brady got its brief in. The AG’s brief thusly undercuts the need for Brady to be allowed intervention.

In Brady’s own words, the crux of its argument is:

The disposition of this action threatens to create a practical impediment to Brady’s ability to protect its members’ interests. Appellee’s press release stated that “[s]hould the decision of the Ninth Circuit become final, the Sheriffs Department will begin to issue CCW’ s in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense.” (Ex. B). In other words, the Sheriffs department will begin issuing CCW permits to people it does not believe have a good cause to carry a concealed weapon. The Brady members are powerless, on their own, to stop the Sheriffs department from issuing CCWs in such circumstances. Therefore, the Brady members’ interests in their safety, as described more fully in Sections I and II(B) supra, would be practically impeded by the disposition of this action.

In support of its motion, Brady filed a series of mostly identical declarations from its members. Two in particular stand out.  One is filed by a former Marine, Jaqueline Lader who states that she and her husband (also a former Marine) were present at the Aurora theater at the time of the mass shooting there, a circumstance she describes in some detail. She further testifies that she specifically researched gun laws, and chose San Diego as a place to move because of its restrictive approach to the carrying of firearms.

Finally, repeating language found in each of the declarations, she says:

11. I am very worried about the implications of the recent decision by the U.S. Court of Appeals for the Ninth Circuit overturning San Diego’s policy on the concealed carry of weapons. This decision and the likely increase in the number of concealed, loaded firearms that will be present in public areas as a result increases my risk of once again personally experiencing gun violence.

12. I frequently visit parks and other public places in San Diego, such as beaches, health clubs, and grocery stores. This change in the law will change where and when I visit these places. I will no longer go to some places because of my fear for my personal safety from those who will now be permitted to carry loaded and concealed weapons due to the recent court decision.

13. I am highly concerned that with an increased number of concealed firearms in public, there will be an increase in altercations that escalate to gunfire in which my family either myself, my husband or my 7 year old daughter-will be harmed. I will be extremely reluctant to engage in public activities because there will be a greater likelihood that I will encounter a person carrying a concealed weapon.

14. I am afraid that I will be personally harmed by gun violence committed by a person with a concealed weapons permit as a result of the Court’s decision.

15. I am deeply concerned about the carrying of guns by untrained individuals, which will increase as a result of the Court’s decision. The resultant change in the law makes it much more likely that someone will carry a weapon without proper knowledge of safety procedures and commit an accidental shooting of which I am a victim.

16. Consequently, the Court’s decision reduces my opportunities to pursue recreational, aesthetic, and leisure activities in public places.

It would appear that Mrs. Lader is unaware of California’s 16-hour training requirement, San Diego’s shooting qualification requirement, or the fact that concealed weapons carriers are significantly less likely to commit violent crimes than regular citizens or even police officers.

The other declarations generally describe fears of increased incidents of road rage, fears of children having access to firearms because their parents will be more likely to possess firearms (?), fear of not knowing who has a gun, and the generalized fear that people around them might just have, well, guns. This was one of my favorites, signed by Ron Marcus, a board member of the San Diego Chapter of the Brady Campaign:

7. The Court’s decision also harms my rights of free speech and association.  Approximately one year ago, our Chapter held a meeting in a local coffee shop. Another patron of the business overheard our discussion and informed the group that he disagreed with our position on gun violence prevention and was carrying a concealed firearm. We were startled that he told us that he had a concealed firearm, were unsure why he told us about that and stopped engaging with this person. The increased number of people carrying concealed weapons as a result of the Court’s decision increases the likelihood of intimidation by people who are carrying concealed weapons and can restrict my participation in the debate about gun violence prevention.

8. If the Ninth Circuit decision is reversed, I will feel significantly safer in all of my activities and will fully enjoy the public space in San Diego County.

Translation: he’s afraid of people who carry concealed firearms, firearms are “intimidating” and he’s afraid to engage in debate with gun owners because they’re scary. Ultimately, he feels his right to free speech is threatened by your right to bear arms. It’s not clear why he believes that he will feel “safer” if he decision is reversed, in that he has already had at least one (nonviolent) encounter with a concealed weapons carrier. OMG! There might be even more!

Brady’s en banc petition merits little discussion. It largely reiterates – as does AG Harris’ brief – the arguments of the dissenting opinion. Its first point, however, contends that the decision conflicts with US Supreme Court precedent, in particular, Heller. That decision was very clear, according to Brady, that the right to keep and bear arms is limited to the home. Remarkable. The remainder of the argument is that firearms are simply too dangerous and present too great a risk to be allowed out in public—a point repeated endlessly in each of the various cases addressing these issues.

As for the California Police Chiefs’ Association and California Peace Officers Association, they didn’t actually move to intervene, asking the court to “construe” its en banc request as such a motion. Here’s what the Police Chiefs had to say:

There are significant questions of exceptional importance at issue in this matter, which warrant rehearing en bane by this Court. Specifically, the Opinion determines that California’s requirement for a showing of”good cause” for the issuance of a permit to carry a concealed weapon in public violates the Second Amendment. This decision impairs the ability of Sheriffs and Police Chiefs throughout the entire State to implement California law in a manner specific to the needs of their particular region and jurisdiction. As CPCA and CPOA asserted in their amici curiae brief to the Court in this matter, the State of California is extremely diverse- both geographically and in terms of population density in varying regions. Therefore, the Legislature has purposefully and necessarily left the determination of “good cause” for the issuance of permits to carry concealed weapons to the discretion of Sheriffs and Police Chiefs. The needs of any particular jurisdiction, especially due to the density of a specific area’s population, is a matter which requires individualized determination, and such discretion is not inconsistent with the scope of the Second Amendment right at issue in this matter.

Restated, the Chiefs (and the Sheriffs, even though they didn’t join in the application) contend that they should have the right to decide who gets to exercise Second Amendment rights in their jurisdictions. No mention is made of the fact that Police Chiefs are allowed to issue CCWs only if the Sheriff of their county delegates that function to them. Nor is any mention made as to why CPOA has any interest in the outcome whatsoever—unless one assumes that his group is just generally opposed to the issuance of CCW licenses.

If you have some time on your hands and feel like torturing yourself with these voluminous pleadings, the Ninth Circuit Clerk, recognizing the great public interest in the case, has created a special web page where the briefs and motions are posted. Enjoy.

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56 Responses to Parsing Peruta’s En Banc Petitioners

  1. Which “conspiracy theorists” among us claimed to believe that? None. Straw man. Argument by proxy.

    • If you’re referring to the proposal that the Sheriff ducked to keep the case from SCOTUS, I don’t see how anyone could believe it now.

      More likely, the Sheriff decided not to petition for rehearing en banc because he’s up for re-election and doesn’t need any more trouble.

      • *∞
        But the people need to keep the spotlight on this _____(insert flame of choice) til the elections are over.

  2. Standing can be a complex issue, but c’mon. Under any reasonable definition of standing, these putative intervenors lack it.

    If the Circuit grants the motions, it’s nothing more than a scam to enable reversal.

  3. Slick he’s going sneaky. We need stop this crap from continuing I keep re- sending the same emails every Friday guess I’ll just have to step it up a bit make it a daily. Yes I am absolutely sure they are tired of seeing them but if everyone did the same it might have an effect.

    • I have seen the anti-rights crowd assert, again and again, that they have a constitutional right to “feel safe”.

      I find the best response is to simply tell them that no such right exists, nor does a right not to feel offended. They are the only ones who can control their “feelings”. No one else can.

      • If they can feel safe in a dangerous world after re-electing Obama, they can feel safe anywhere. Emphasis on ‘feel.’

      • In the minds of the rape-me-just-don’t-kill-me crowd, the possibility that an individual may be (legally) carrying a concealed weapon makes them a bully. And we all know that bullies are bad, mmmkay?, bad.

  4. ““…[s]hould the decision of the Ninth Circuit become final, the Sheriffs Department will begin to issue CCW’ s in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense.” (Ex. B). In other words, the Sheriffs department will begin issuing CCW permits to people it does not believe have a good cause to carry a concealed weapon.””

    According to them, self-defense is not a good cause for 2A rights. Guns must be too scary for even self-defense.

    All the objections you listed were based completely on irrational fear. 100%. It must be rough to be ruled by fear.

  5. Not only fear, but fear of what MIGHT happen.

    This is the road we’ve chosen…laws (and the legal system in general) working in the fantasy land of “what if” rather than sticking to what it does sorta well…”he did.”

    Laws should in general not be based on what might happen, but to respond to what has happened. You killed someone? Legal trouble. Robbed a bank? Legal trouble.

    Might someday do something someone thinks is a bad idea? For that matter, we could extend their “logic” ad absurdum.

  6. What if a patient with cynophobia argued that dogs should not be allowed in public? If a patient with agoraphobia petitioned for a ban on open spaces? I can’t imagine that they would be taken seriously.

    In these briefs we have high level members of the civilian disarmament industry admitting that they don’t want people carrying guns because of fear. Nothing more, nothing less.

    It’s a small matter to show that those fears are not reasonable based on crime stats.

    So the grabbers have admitted, in writing, that they are crippled by irrational fear. This being the case, the grabbers must seek relief from a mental health professional, not the legal system.

    • There are people who have convinced themselves they have “electromagnetic sensitivity” that do just that… and no, they shouldn’t be paid any attention.

      • “There are people who have convinced themselves they have “electromagnetic sensitivity” that do just that…”

        Figures.

        • A fellow I met had a tea shoppe – er, coffee house – in Santa Fe made a conscious decision to have have Wi-Fi because of a couple customers who claimed it “made them feel ill”. While there do seems to be some health risks associated with long-term Wi-Fi exposure, I very much doubt they could actually feel it.

          Unsurprisingly, the place did not stay in business for very long. I’ve expressed my loathing of things Santa Fe here before, and I won’t revisit them, but “No Wi-Fi” really EPITOMIZES Santa Fe.

  7. If Jaqueline Lader moved to San Diego maybe she should keep going till she reaches someplace under the crown.

    • If she moved to SD because of the stricter gun control laws, and that was her goal (less pew pew), maybe she should move to Detroit, super strict gun laws………….. out of hand violence, but strict gun laws 😛

      • Uh, I’ve heard repeatedly in here that Detroit actually has remarkably lax gun laws for a major city

        Not that they could enforce strict ones even if they had them.

      • San Diego is no treat. I was recently in down town for work. Junkies on the sidewalk with….things spread out on a towel trying to sell them. It may be a small area but it distinctly reminded me of the worst parts of San Francisco. I don’t know what the crime rate is in SD but I wouldn’t’ want to tempt fate there.

  8. You guys should be praying an en banc hearing is granted and that this is appealed to the SC otherwise you’re looking at no precedent on the extension of the right to bear arms outside of the home at a time when you have the most gun friendly SC you’re likely to ever have. I promise you, the student bodies of Harvard, Yale and Columbia are not becoming more gun friendly as time passes and that is exactly where the judges we need are going to come from.

    • I would think the ruling, as it stands, would make it more likely for the NY, NJ, or MD cases to get a SCOTUS hearing.

      • Give that man a cigar! Exactly what I have been thinking. IF (and that is a mighty big IF) rehearing is granted (which would mean that the AG’s motion to intervene is granted) and IF the decision is affirmed, I would bet dollars to donuts that the Supreme Court will take Peruta when the AG petitions for cert. And if the ruling stands without rehearing because the motions to intervene are denied, then the Supreme Court will take Drake. All of the affected circuits have weighed in–the issue could not be more ripe for review.

        • I agree. Theres lots more speculation at Calguns forums by more erudite and long-time observers- here: http://www.calguns.net/calgunforum/showthread.php?t=901086

          Scroll to post #37 and note a reference to a statement by CD Michel, the west coast attorneys working with NRA and former Soliciter General Paul Clements on Peruta, with strategy worked out on Richards case, supported by SAF, Atty Gura, and others.

          http://www.calgunlaws.com/statement-for-release-from-chuck-michel-senior-partner-at-michel-associates-west-coast-counsel-for-the-national-rifle-association/

          All the wailing and teeth-gnashing by Brady, the PD chiefs associations
          (which since they represent politicians, tilt the same direction as their masters- the CA politicians, NOT the street cops view…)

          and the predictable slant by the liberal CA newspapers, LA Slimes, Sacramento Bee,

          (see CAL-FFLs response to the opinion piece noted and linked here:)
          http://www.calffl.org/2014/03/sacbees-support-jim-crow-style-policies-shows-true-colors/

          Seem to me to be a desperate effort to somehow persuade one, any one judge on the 9th to request en banc, leading to the hope it will go against the previous decision. We’ll just have to see.

          I can see how the 3 judge panel would easily conclude the AG has no standing, nor does Brady, and simply decline to grant intervenor status.

          But theres no telling what one liberal judge might do, given the pressure and influence peddling available from state and national sources…andremember SCJ Roberts tortured logic on ObamaCare?

          And no matter what, that single act – would do more to discredit the 9th than the previous twenty years of reputation, deserved or not, as being liberal –

          for now that court would be seen as a tool of a democratic politician-
          the CA AG, who declined to be a party to the case in the first place.

  9. While I fully understand the esprit de corps that causes those exceptional people who aspired to and became U.S. Marines to hold onto that accomplishment as a badge of honor for their entire lives, I really need they, and possibly the Marine Corps itself, need to establish some formal procedure whereby certain deserving individuals could be officially and publicly declared “Ex-Marines.”

  10. “They further claim to be acting on behalf of all of the residents of San Diego County who will also face such risks and suffer such fears, as there is no other party acting to protect these persons…”

    Uh, isn’t that done by the SDPD. the SDSD, and the CHP right now? Sorry, no harm, no standing. Thank you for playing…

  11. “One is filed by a former Marine, Jaqueline Lader who states that she and her husband (also a former Marine) were present at the Aurora theater at the time of the mass shooting there…”

    I think these two should be considered ex-marines, not former marines. An oath to support and defend the constitution doesn’t stop for a former marine. I can understand if you went through a traumatic affect to have issues, but the actively seek out a place with restrictive gun laws is idiocy at it’s finest and shows you lack critical thinking skills. To use a bit of logic, the Aurora shooter was not a CCW holder and also did not break any laws prior to his spree. He could have done the same thing in CA. CCW holders are more law abiding than the police so any argument that they are more dangerous is invalid. The Aurora shooter spent time planning the attack so no amount of waiting period would have prevented anything. Additionally they were in a gun free zone, yet he brought guns into that zone. Imaginary lines and words on paper don’t stop people with guns, just ask Ukraine.

    • Mrs. Lader also served in Iraq, and avers that her base regularly came under fire. PSTD perhaps? Her husband doesn’t say anything.

    • I am pretty sure that the Brady brief has a subtitle, written in invisible ink, as a general warning to all who come to California: “Abandon all hope, ye who enter here.”

  12. Thank you for the breakdown. Clearly there is some serious fear going on.
    Clearly we need to stand and fight this, although it should be interesting to see if they grant them to be added to the case, and or decide to move forward on an En Banc.

  13. Per Jaqueline Lader, (normally I would not refer to someone as an ex-Marine, but in this case it seems to be fitting):
    11. I am very worried
    12. because of my fear
    13. I am highly concerned
    14. I am afraid
    15. I am deeply concerned
    This sound more like proof for her protective custody committment than a legal arguement.

        • Ted Turner once said “life is like a B-movie. I want to know how it ends, but I wouldn’t want to see it twice.” Nonetheless he stayed fond a Fonda for a good number of re-runs.

          The professional gun grabber flacks seem to me like re-runs each time they appear on the screen, and I can’t get interested. Only the court filings are amusing.

          I feel certain Ted’s version of re-run was probably more fun than yet another MDA exposure, at least the make-up sex part.

      • The job market for unskilled labor is still weak. Obviously people are grasping at hope, even false hope, that they can spin the anti thing into a full-time gig. The more pathetic the entrepreneurs in that field, the happier I am.

  14. Not that it’s any real surprise, but it’s all the maneuvering and game playing by these AG’s, lawyers and the sort trying to find clever ways around the Constitution that brings to a point the question of their fitness, ethically and morally, for their jobs.
    Is Cali so crime free that any of these LE types can spend so much time and effort depriving law abiding citizens of their Constitutional rights? It’s absolutely obscene!

    • Last I heard, they’d received over 1000 applications since Peruta was decided. For years these southern Ca sheriffs have been saying that there just isn’t that much demand–but what was really happening is that no one wanted to spend $300 knowing in advance that there was no way this side of Hades they were going to get approved, and all because the Sheriffs actively discouraged people applying. LASO was sued–twice–because they did not provide forms at each of their branch offices, the first time for that failure, and the second time for violating an injunction requiring them to supply the forms. I understand that the LAPD does post the form on their web site–but you have to be persistent and patient in order to locate it because it is so well hidden. SFPD used to have requirements posted that would take a couple of grand to fulfill–if you could ever get past the “GOOD CAUSE” requirement. And though it is not noted above, LCAV, a SF based group of attorneys opposed to guns, was joined by the Sheriff of Marin County (located just across the Golden Gate Bridge from SF) in filing an amicus in support of the AG’s request for reconsideration en banc. Rumor has it that the Marin Sheriff is proud of his refusal to issue CCWs (29 civilian ccws for the county, 18 by the sheriff).

  15. Several corrections

    1. Police chiefs may issue CCW’s on their own authority. They do not need to be “delegated” by the Sheriff.

    Rather, the law states

    26155.

    (b) The chief or other head of a municipal police department may
    issue a license under subdivision (a) in either of the following
    formats:
    (1) A license to carry concealed a pistol, revolver, or other
    firearm capable of being concealed upon the person.
    (2) Where the population of the county in which the city is
    located is less than 200,000 persons according to the most recent
    federal decennial census, a license to carry loaded and exposed in
    only that county a pistol, revolver, or other firearm capable of
    being concealed upon the person.
    (c) Nothing in this chapter shall preclude the chief or other head
    of a municipal police department of any city from entering an
    agreement with the sheriff of the county in which the city is located
    for the sheriff to process all applications for licenses, renewals
    of licenses, and amendments to licenses, pursuant to this chapter.

    Also, there isn’t a 16hr training requirement in California. Rather, the law allows the issuing authority to require training UP TO 16hrs. In several counties it is considerably less, in at least one 4 hrs. I know Tehama is 8 hrs.

    To reiterate, police chiefs can issue on their own discretion. Or they may enter an agreement (declare “g”) to have the sheriff handle all applications. The sheriff cannot prevent them from handling applications. At least one Los Angeles County city issues more freely than the Sheriff, e.g.

  16. I have personally had a firearm save my life at least twice. They almost had their lives taken by one…..

    So we are both basing our arguments off of emotion…

    Now facts:
    If guns were illegal: You’d probably *still* be alive
    If guns were illegal: I’d probably be dead

    This is assuming the “evil-doers” will most likely be using illegal weapons or were prohibited.
    —————-

    Side note: you were scared of guns, so you moved right next to one of the nations largest naval bases?….

    —————-

  17. The Bradyista Marcus not feel safe when there’s a gun around?

    Why didn’t he go to the antigun Peet’s coffee shop for his stupid little meeting then? He’ll be protected by his little forcefield. Peaceable gun owners stay out, but criminals won’t care. Win win for everyone.

    —————————————-

    And if there was a way to blackball the (alleged) CCW carrier who threatened him, I would do it in a heartbeat.

  18. PS: another especially good opinion, here- at Calgun forums where the discussion goes on while the 9th considers whether to grant intervenor status…

    http://www.calguns.net/calgunforum/showpost.php?p=13584474&postcount=1895

    and a good link to a recording with tips to on when to listen, of the December 2012 orals, the presentation to the 9th by Perutas lawyers, vs San Diego County’s :
    http://www.calguns.net/calgunforum/showpost.php?p=13585057&postcount=1899

  19. Gee, I wonder what the Three Million gang members of California think about the safety of goody miss twoshoes since they carry everyday all around her.I wonder if the gang members in Cali give a damn

    about showing reasonable cause to carry as they need to to continue car jackings, murder for hire, and don” t forget gang murder for admission.Gun robery and murder.
    Do you think The AG, the Chiefs Assoc, The Sherrifs, and the Brady Bunch will ask them

  20. I’d appreciate Attorney General Kamala D. Harris & the Brady Campaign to stop speaking for San Diego and myself. I for one am a Californian & San Diegan and have been my whole life. There is a body representing us and that’s the plaintiffs. First and foremost Sacramento is completely out of touch with anything Southern California related and the Brady campaign is just a whining liberal group who does not have a place or my consent to speak on my behalf.

    • It seems that Sacramento is also out of touch with things Northern Californian.

      What DOES Sacramento know about, beyond Sacramento and Stockton?

      • This is their own doing because they should have been less short sighted. They should have just left open carry alone because gun owners are less likely to wear their firearms if everyone can see them. It makes them a target for criminals, police harassment and is so much more intimidating than something you can’t see. Which is why I prefer concealed carry.

  21. Mr Peruta posted on CALGUNS.net 2 hours ago that intervention was denied, and there would be no en Banc hearing on the case. Anti’s lose big time.

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