CA AG Harris’s (Mostly) Phony Appeal Announcement


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.


  1. avatar William Burke says:


    I laugh whenever I hear the name, “Kamala Harris”. 😀

    1. avatar GSRpositive says:

      “Sugar Bear” Harris
      “Ugly Bear” Harris
      The Mississippi Mauler

      1. avatar William Burke says:

        He’s had both legs amputated, due to diabetes. The Mississippi Mauler no more.

  2. avatar michael nieto says:

    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?

    1. avatar William Burke says:

      So you’re accusing her of sentience? That’s really funny.

    2. avatar Mark N. says:

      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.)

      1. avatar Aaron Bailey says:

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

        1. avatar Mark N. says:

          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.

        2. avatar Dave357 says:

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

    3. avatar Dave357 says:

      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.

  3. avatar TRP says:


  4. avatar MrAninnyMouse says:


    1. avatar Mecha-Ben says:

      My thoughts exactly. That’s a mahn neck if I ever saw one.

  5. avatar PT Stud says:

    Frak it

  6. avatar Ralph says:

    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?”

    1. avatar mk10108 says:

      Well do you state punk? LOL

    2. avatar ropingdown says:

      No. And whatever the ancillary consequences, I’m hoping to hear a ‘click.’ I suppose that goes for all the Californians lying, metaphorically, on the ground.

  7. avatar Tom in Oregon says:

    She’s doing what Obeyme told her to do, through holder.

    1. avatar William Burke says:

      “Obeyme”! Boy, is THAT one gonna get ripped off!! Including by me.

      1. avatar Pantera Vazquez says:

        Call me a thief as well

        1. avatar William Burke says:

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

        2. avatar Ralph says:

          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.

        3. avatar William Burke says:

          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.

  8. avatar Daniel Silverman says:

    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.

    1. avatar Aaron Bailey says:

      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. 😉

      1. avatar Daniel Silverman says:

        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. 🙂

  9. avatar peirsonb says:

    The headline photo looks incredibly like River Song….

    1. avatar dlj95118 says:

      …nnnnnnnnehhhhh – River Song is beautiful. Not so the one in the photo.

      1. avatar Marcus Aurelius says:

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

    2. avatar JoshuaS says:

      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

      1. avatar Gyufygy says:

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

  10. She knows who butters her bread. The court won’t reverse itself, she will come off like a hero and if she is lucky she can ride this train all the way to the Supreme Court.

    1. avatar Mark N. says:

      Last I heard, she was aiming for the governor’s seat.

      1. avatar Model 31 says:

        Perhaps she just created a future conflict of interest for herself on this case and will be need to recuse herself when it gets to the USSC.

    2. avatar ropingdown says:

      If Obama had a daughter I’m not sure she’d look like Kamala, but I suspect she would act similarly.

  11. avatar The mayor of Candor says:

    You can thank Willie Brown for this work of art.

    1. avatar Dirk Diggler says:

      and Willie had a thing for tailored clothing and younger women . . . I am sure he tapped it

  12. avatar Martin says:

    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

  13. avatar WI Patriot says:


  14. avatar mk10108 says:


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

    1. avatar William Burke says:

      What does DiFi have to do with California state politics?

      1. avatar Chris says:

        That’s a joke right?

        1. avatar William Burke says:

          No. She’s a United States senator. She does not participate in the California legislature. Get it?

  15. avatar Dirk Diggler says:

    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

    1. avatar jirdesteva says:

      5) WTF Really?
      Have you seen that hag?
      Who are you and what have you done with Dirk?
      You must not be talking about Dianne Frankenstein My bad( real bad).

      1. avatar William Burke says:

        Somebody go check for a very large, dried-up seed pod in the basement.

    2. avatar Daniel Silverman says:

      Wait I thought you wanted the British LEO over Shannon.
      What you going to start a harem??

      1. avatar Dirk Diggler says:

        it is more fun when they bring a friend. . . . .

  16. avatar spacecoaster says:

    You don’t really think that she is more attractive than Florida’s own Pam Bondi, do you?

    1. avatar Martin B says:

      Nice shot. The shirt brings out her eye color. I see she likes a pearl necklace…

      1. avatar Daniel Silverman says:

        Oh I so won’t touch the necklace joke lol

  17. avatar William Burke says:

    “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.

    1. avatar Ralph says:

      She’s only 49 and has a long career ahead of her. Unfortunately.

      1. avatar William Burke says:

        I thought we were talking about DiFi, whose 49 is far out of view of the rear-view mirror. My mistake.

      2. avatar ropingdown says:

        It’s been a pure Obama lap-dog play by KH. So what’s 49 in dog years?

        1. avatar Ralph says:

          Based on my computations, she has bad hips and sh1ts the carpet.

  18. avatar Col. Angus says:

    She looks like Susan Rice. Maybe why FUBARaq has hot tamales for her….

  19. avatar Karlan in ATX says:

    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

    1. avatar Mark N. says:

      I seem to recall that Puerto Rico court system has already declared that a CC ban is unconstitutional.

    2. avatar Daniel Silverman says:

      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.

      1. avatar Dirk Diggler says:

        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.

  20. avatar Will says:

    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.

    1. avatar ropingdown says:

      If you you think “keep” means something else and you own anything good, you can keep it at my house.

      That’s bearable.

    2. avatar DonS says:

      There is such a thing as white chocolate
      White chocolate is to chocolate as lard is to bacon.

      1. avatar William Burke says:

        White Chocolate is Cocoa Butter.

        1. avatar DonS says:

          Yep. And lard is rendered hog fat. Hence, my comparison.

        2. avatar William Burke says:

          If you’re that dog, you’re smarter than me!

    3. avatar Ralph says:

      So Ray Nagin’s “Chocolate City” was white? Who knew.

      1. avatar Dirk Diggler says:

        wait until he meets his roomie . . . .

  21. avatar JAS says:

    Thanks for the “concise” but thorough explanation. I posted the question in an earlier anchor post.

  22. avatar Highwayman says:

    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.

    1. avatar JoshuaS says:

      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.

      1. avatar rlc2 says:

        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…

  23. avatar rlc2 says:

    I don’t think anyone has posted a link to this yet, so for your reading pleasure, lots more conversation and erudite (?) legal opinion. Start at about post #54 or so.

  24. avatar SpecialK says:

    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: 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.

    1. avatar rlc2 says:

      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.

  25. avatar William Burke says:

    After the clock has run out, you mean. She’s asking for an OT in a lost game!

    1. avatar Mark N. says:

      It ain’t over ’til the fat lady sings.

  26. avatar Maki says:

    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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