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Reader Mark N. writes:

California Attorney General Kamala Harris has moved for an en banc reconsideration/rehearing of the denial of her motion to intervene in the Peruta case (the petition may be found here). The guts of it run about seven pages. Of course she harps on the dissenting opinions in both the main case and in the denial of the motion to intervene, which is in many ways pretty insulting to the majority (and hence not very persuasive). The worst deficiency . . .

is that the brief refers to the pending en banc application in the companion case, Richards v. Prieto (which challenged shall issue practices of Sherif Prieto in Yolo County). But she argues nowhere why the state’s interests cannot be adequately represented by Sheriff Prieto. Or why it is that she didn’t seek to intervene in that case.

But there is an explanation as to why Harris did not intervene in Richards — the state was a named defendant in that action, but successfully moved to dismiss on the basis that it was not a proper party. Richards only affected the application of the sheriff’s discretion in issuing carry permits, not the constitutionality of the state’s may issue law. That is the direct opposite of what is being argued in Peruta.

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  1. While factually and intellectually true, the breakdown of this is that KH is petitioning for en banc to an overwhelmingly progressive court. The 2:1 decision in february, and again in october, do not represent the court as a whole. There is a significant chance that Peruta will be sent en banc on politics alone, rather than dealing with the constitutionality and merits of the case.

    • In this case Harris is asking for an En Banc review of her to intervene, not even a rehearing of the case.
      At this point she is behind the 8 ball as it were. She would need to first get a right to intervene, then actually have that accepted. Also traditionally en banc does not usually overturn rulings, as this tends to piss off judges on the court. It is politics.
      The ruling is pretty sound as to her denial to intervene so I have a feeling it will stand.

    • True, and a subject on which people can speculate upon endlessly (and do on the CalGuns forum). However, a grant of en banc on the narrow and not particularly sexy question of whether the panel abused its discretion in denying her motion to intervene does not have a high probability of success, and without a reversal of that denial, the case is essentially over, although she could drag it out by seeking review in SCOTUS, where success would seem to be even more doubtful. On top of which, there is still Richards v. Prieto, and although the opinion in that case was “See Peruta”, it still offers a procedurally simpler avenue of review. Finally, there does not seem to be any movement towards the Circuit granting en banc sua sponte. So we will just have to sit tight and see what we will see. I am not placing any bets on the ultimate outcome, but I suspect it will be at least a year before everything is sorted out in the Ninth.

      • Yay, more feet dragging. I swear Harris has become no more than a petulant child who didn’t get her way.

        • I almost wish they would grant her standing to request en banc and it gets overturned. If this goes to the Supreme Court it would kill may issue nationwide. Or they refuse to hear a gun case again and Cali and the east coast offenders stay happy little cesspools of innocent blood.

      • the problem with the argument from the “prettiest AG in the US” in both cases is basically, well, I didn’t want to participate earlier because I presumed the deck was stacked judicially in my favor and I didn’t to dignify a suit from the peons, I mean waste precious state resources on what should have been a slam dunk. . . .

        so basically, her peeps got lazy and she wants a mulligan. bad precedent to allow.

        • I don’t think she’s very pretty at all, no matter what Obozo thinks.

          If you want to see a pretty AG, who’s also a good ten times smarter than KH, head on down Florida way and take a look at FL Atty. General Pam Bondi. Now that’s showing me something.

  2. 29 of the 45 judges on the 9th Circuit were nominated by Carter, Clinton and Obama, representing the lunatic fringe of the Progressive movement. Most of the other 16 judges represent the interests of Americans.

      • Not all hear the en banc. Rather only 13. 12 are selected randomly and the thirteenth is Chief Justice Kosinski. Kosinski is probably a safe bet for affirmance.

        And the 9th actually would like to be split up. It is the largest circuit of all, whether measured by area (it covers Alaska, Hawaii, California, Oregon, Washington, Idaho, Arizona, Montana and Nevada, plus Guam and the Northern Marianas) or by case volume. Numerous past efforts to do so have failed.

        • I believe that the en banc panel would consist of 11 judges, 10 randomly drawn, and the chief judge, who as of December 1 (tomorrow) will be none of than the dissenting judge of the Peruta panel, judge Thomas. So there is one sure vote against anything pro-Peruta en banc.
          Both Kozinski and Thomas adamantly oppose splitting the Ninth.

        • Judge Thomas was also the en banc coordinator for years, which is apparently a thankless job no one wants, but one that per Judge Kosinski, he did in an even-handed way.

          The frustrating thing about the en-banc process is how arcane it is, and how the court can and does ignore its own published guidelines and deadlines, in the FRAPs.

          And since its an internal process, there is no transparency or information that must be released, so all we have is at best, informed speculation, and thats been bad lately, with second hand reports of what this clerk or that said, or what some staff attorney said- which has turned out to be misleading.

          And even suspect, given the coordination of the Brady appeal and Harris appeal, with wording based on already disproven legal arguments, but the same hyperbole as used by Judge Thomas…”for the safety of millions of citizens” ( if issuing CCW permits for self defense is allowed. )

          REALLY? What I find amazing is the absolute credulity of the press, and the ball-less GOP of CA for pointing out the incredible hyperbole of their emotional claims, having failed on the points of law.

          What Harris and Thomas are saying, effectively- If as many as 1% to 1.5% (the high estimate) of California citizens, the law abiding who spend over $1000 out of pocket on FBI backgrounds, fingerprints, permit fees, training class costs, ammo and time to go to classes and the range to practice for the practical shooting test, can suddenly carry guns, concealed, then THATS going to endanger the safety of millions of citizens?

          As opposed to what Joe Blow on the street sees – say, the gangs, the illegal immigrants with criminal histories, and the prisoners being let out of jail thanks to prison overcrowding and the new law revising crimes from felonies to misdemeanors, turning thousands loose early…

          None of those folks will be applying for a permit, but somehow, we are supposed to imagine that LAWS about guns will be followed by law breakers? That the criminals wont have guns?

          Let me just say again the highlights from that FBI 5 year study on criminals who attack cops.

          They are ready to shoot immediately- (no warnings, no worries about bystanders, appropriate use of force continuum, post shoot legal complications).

          They are better shots, having practiced on average 23 times a year (which is about 6 times the average cops go to the range, for official training),

          They are better armed (you think they care about Assault Weapon definitions- bullet buttons, 10 round mag limits, too-short barrels, or frigging flash hiders fer chris-sakes?)

          They have nothing to lose. Except for going back to jail.
          But not for a misdemeanor- like carrying without a license.

        • The Chief Judge is now Sidney Thomas who wrote the dissent in Peruta v. San Diego. An en banc panel consists of 11 judges, one of which is the Chief Judge. Judge Thomas is also the en banc coordinator which means he can compress or expand the time required for an en banc decision and he is the one responsible for marshaling the case through the en banc process.

          You really should try to keep up with current events.

  3. So she wants the Ninth Circuit to hold an en banc hearing to review a motion to intervene in a case that a panel of the Ninth Circuit already reviewed so she can request an en banc hearing of that case. Seems pretty desperate to me and I know if I was a judge on the Ninth Circuit I would vote no and if possible fine her for wasting the court’s time.

    • That’s not unlikely. This is little more than a procedural matter, not a substantive one, and courts don’t particularly like to be nagged by people whining about not getting their way. I expect, though I’m not entirely confident, that she’ll be told to go fish.

      • Yeah.
        The courts are busy and I doubt they would want to spend more time on this case, even if it meant harassing gun owners.

        • The courts are “busy” arguing the most tedious details to absurd degrees & torturing logic until it screams.

          If corporations are “people”, and campaign donations are “speech”, then the (human) people have already lost the reins.

  4. Just wait until she’s governor, or Gavin Newsom’s lieutenant governor/governor in waiting. I would not be surprised if she had her eye on the White House.

    Californians may get effectively shall-issue CCW permits eventually, but it’s only a matter of time until ammo permits/limits/registration are mandatory too.

    • “I would not be surprised if she had her eye on the White House.”

      She’d be uglier than Hilarity by then, in more ways than one.

  5. This is what we have to deal in California, guys. Our struggle continues here and one day we shall overcome people like her and the many nonsense anti-constitutional laws in place(I can only purchase 1 handgun every 30 days, but as many AR-15’s as I want). Also, this is not a Democrat or Republican issue, at least here in California. Schwarzenegger was our last governor and he signed many anti-2A laws and we all know Reagan wasn’t gun friendly either.

  6. Thanks, Mark.

    A commenter at mdshooters who is an attorney litigating in appeals courts there for 40 years said Harris’ decision to appeal the decision to deny her intervention characterized the AG as “going nuts” but also said “don’t count on the 9th for ruling strictly by the law”, given its past reputation, “unique” in the nation.

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