By LKB
As a federal trial attorney with appellate experience, including clerking for a United States Court of Appeals judge decades ago, I tend to discount a lot of the “conspiracy theories” non-lawyers often postulate about how courts work and operate in Second Amendment cases. Certainly, there are plenty of judges who decide cases by deciding what result they want to reach and then construct a rationalization that justifies it, but by and large my experience is that judges – especially appellate judges – realize that at least appearing to follow the rules and the law is essential to public confidence in the courts.
I was thus flabbergasted at the bizarre order bizarre order that came out of the Ninth Circuit Saturday in Duncan v. Bonta, the emergency appeal from Judge Benitez’s tour de force opinion nuking, once again, the California standard capacity magazine ban.
As I’ll explain below, the Ninth Circuit isn’t even trying to hide its contempt for the law and established process, and its order yesterday shortcut a raft of established policies and procedures.
Let’s set the stage for where we are now. After a bench trial several years ago, Judge Benitez ruled that California had failed to establish the constitutionality of its ban on so-called “high capacity” magazines, either under the “intermediate scrutiny” test or the “text, history, and tradition” standard. A three-judge panel of the Ninth Circuit affirmed the ruling.
What happened next — which to my knowledge had not been disclosed before — has just been revealed by Judge Lawrence VanDyke in his blistering dissent from yesterday’s order. . ..
After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone— not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—including a death penalty case. Priorities.
In other words, a faction of Ninth Circuit judges threw the Court’s own internal rules out the window in order to take the case en banc…where, predictably, they reversed Judge Benitez’s decision in 2020.
Duncan then filed a cert petition to SCOTUS, which held the case pending decision in Bruen. After Bruen was decided, SCOTUS summarily “GVR’d” the case, sending it back to the Ninth for reconsideration.
Because Judge Benitez had already made alternative findings based on application of the “text, history, and tradition” test later adopted by SCOTUS in Bruen, the Ninth Circuit could — and should — have simply reheard the case itself and decided it. Once again, however, the anti-2A convictions of a faction of Ninth Circuit judges prevailed over conventional practice, and the Court instead sent the case back to the trial court . . . for what isn’t exactly clear.
There had already been a full trial, and there was no finding made that required a new trial or that vacated any of the fact findings made before. Once a case has been tried, absent an order granting a new trial you don’t just get a do-over on remand. This decision appeared to be nothing more than an effort to delay the case as much as possible, one that Judge Patrick Bumatay and Judge VanDyke dissented from.
So the case went back down to the district court, creating a delay of another year. While Judge Benitez bent over backwards to give California the chance to present all the new evidence they wanted as to historical analogues, to no one’s surprise last month he again ruled the California law is unconstitutional and permanently enjoined its enforcement.
As is typical in high profile cases like this, Judge Benitez granted the state a 10-day administrative stay of his injunction to allow them to file an appeal and seek a stay pending appeal…which is a very high burden to meet. Normally, such a motion would have been sent to the three-judge panel that heard the first appeal, which included Judges Bumatay and VanDyke.
What did the Ninth Circuit do instead? It issued an unprecedented order taking the entire case en banc immediately — including the motion for a stay pending appeal — and extended the administrative stay another ten days.
As pointed out in dissents from Judges Bumatay and VanDyke, the Court isn’t even trying to hide what it is doing. As Bumatay wrote . . .
For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). In Bruen, the Supreme Court made clear that the Second Amendment must no longer be deemed a disfavored right.
With this clear direction from the Supreme Court, you might think that our court would return to regular order and handle this Second Amendment case like all others before our court. And in the normal course, emergency motions would be handled by a three-judge panel. But not here. Because this is a Second Amendment case, we now take the unprecedented step of taking an emergency motion as an en banc panel in the first instance. While our rules may leave room for such an unusual step, discretion and wisdom counsel against it. Indeed, to my knowledge, no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter. And the majority cites no precedent otherwise. So I’m left wondering why we rush to do something so unorthodox.
Judge VanDyke was scathing in his criticism of this open judicial activism . . .
I share Judge Bumatay’s concerns about the irregularities created by this en banc panel’s all-too-predictable haste to again rule against the Second Amendment. Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why. . . .
Cases involving the Second Amendment in our circuit have unfortunately suffered from a like phenomenon. And just as we should no longer distort our rules in abortion cases, we should no longer apply “different rules to different constitutional rights.” Whole Woman’s Health, 136 S. Ct. at 2321 (Thomas, J., dissenting). We should not give Second Amendment cases “special” treatment. But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper— indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place.
Judge VanDyke then proceeded to air the Court’s dirty linen, as quoted before and in greater detail, making it clear that when a Second Amendment case is before the Ninth Circuit, the court’s rules and procedures mean nothing.
He concluded by calling the Court out on this . . .
In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors?
The story of the Second Amendment in this circuit has been a consistent tale of our court versus the Supreme Court and the Constitution. That tale continues today, and will continue as long as a number of my colleagues retain the discretion to twist the law and procedure to reach their desired conclusion. As uncomfortable as it is to keep pointing that out, it is important the public keeps being reminded of that fact.
What will happen next? The en banc court will have to decide whether or not to grant a stay pending appeal by October 10, but no one expects the Court not to do so…and then will likely sit on the case for as long as possible, as has been the Ninth Circuit’s tactic in Second Amendment cases for years.
This time, however, the Supreme Court is watching, and Justice Thomas isn’t amused. Currently, the Second Circuit is considering an appeal of injunctions against laws New York passed in its post-Bruen hissy fit, and has granted a stay of those injunctions pending appeal. Earlier this year, Justice Sotomajor (the designated justice for the Second Circuit) denied a motion to vacate the Second Circuit’s stay.
But last week, Justice Thomas put that request back on the agenda for the Court’s conference for October 6. That suggests to me that he may have the votes lined up to vacate the Second Circuit’s stay pending appeal . . . or perhaps to take those cases immediately.
If, as it appears, the Ninth Circuit anti-gun faction continues to twist the law and procedure like a pretzel to reach its desired anti-Bruen outcome, expect to see an emergency motion to SCOTUS to vacate that order, followed by a “shadow docket” order doing just that.
I will not be surprised if Justice Thomas or Alito issues a concurring opinion that cites Judge VanDyke’s dissent and sends an explicit message to the Ninth Circuit that says, in effect, “We know what you are doing, and we are simply not going to give you the usual deference we give Courts of Appeals. Keep doing this and we’ll start summarily reversing you in every Second Amendment case that comes before us.”
We will see. The next month will be very interesting.
