BREAKING: San Diego Will Not Appeal En Banc

From a press release today:

Today, San Diego County Sheriff Bill Gore notified the County Board of Supervisors of his intention not to seek en banc review in the matter Peruta, v. County of San Diego. A copy of Sheriff Gore’s letter to the Board of Supervisors is below. 

Members of the public wishing to obtain a CCW under the standards articulated by the Ninth Circuit should be aware that the decision has not yet become final. Federal court rules prescribe a period of time which must elapse before the case is remanded to the District Court for further proceedings. Should the decision of the Ninth Circuit become final, the Sheriff’s Department will begin to issue CCWs in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense. 

Additionally, those seeking a CCW are advised that the process for obtaining a CCW involves several steps. The application process includes a scheduled interview, payment of fees, as well as state and local background checks. Successful completion of a firearms course of training is also required. This process can take several months.

The downside to this ruling is that this case won’t be going to the Supreme Court. Though it is circuit precedent, so future cases will have a chance to to bat and see if they want to swing for the fences. Will Hawaii just start issuing when challenged? Or will they appeal En Banc and all the way to the Supreme Court if necessary?

UPDATE: More from Dave Kopel at The Volokh Conspiracy.

29 thoughts on “BREAKING: San Diego Will Not Appeal En Banc”

  1. “This process can take several months.”


    “We shall issue your CCW when hell freezes over or the US beats Canada in hockey, whichever comes first.”

  2. Wow that’s amazing news. I highly suspect that they don’t want to appeal because they don’t want SCOTUS to make a country wide ruling.

    1. I’m wondering if someone gave Sheriff Gore a friendly whisper.

      And that like the 7th ruling the anti’s are doing triage.

      Heck they may hope to have SD (and much of the rest of Cali) slow-walk any permits (well permits to proles, the connected will still get to carry) until reinforcements come via SCOTUS or congress.

  3. What happens if a ninth circus appeals judge asks for an en banc review? Will SD delay until it is appealed?

    It would be nice to get one of the may/shall cases to the Supreme Court. Hopefully before one of the Heller majority retire.

  4. There are still two cases that were heard at yhe same tome as Peruta by the same panel in the Ninth, one in CA one in HI. Does Peruta automatically remand them back down as well?

  5. This is good news in terms of Californians getting their CCW permits soon. Although I was hoping it would go before SCOTUS to settle this nationwide once and for all. Although, if it sticks in Cali, it will probably inspire the other states to bring cases forward, and one of those will likely end up going to SCOTUS eventually.

  6. Assuming a 9th Cir Justice doesn’t call for en banc; when the dust settles smarter people than I have figured out that we’ll have only 14% of the country living in “May-Issue” states. Thinking about it realistically, only 20-30 million people of that 14% are actually in de facto “no-issue” counties/cities.

    That’s the map I’d like to see; county by county of the “May-Issue” states to show just how geographically limited the “no-issue” side -really- is.

  7. I would guess that the reason it would take several months is that they are only taking 4 applications per day! That will really slow things down for them! I called on the 18th and got a date 6 weeks out.

  8. I do not believe that Hawaii can appeal en banc because they are not a party in this case. Hawaii citizens now have a powerful weapon to use against issuing authorities in HI. If the clock runs out and Peruta becomes binding precedent, then there is nowhere to hide. THEY MUST ISSUE.

    1. Unless a District Court judge makes up some new law that contradicts Peruta, and a different panel of the 9th rules differently.

      Internal consistency is something we tend to value, and which judges ought to value, but which is not necessarily required.

      1. IIRC Baker (HI) was heard by the same panel at the same time as Peruta and the other Cali case.

        That’s why I’m confused they didn’t rule on all 3.

        1. Baker v. Kealoha (HPD police chief) was argued orally in the same session as Peruta and the other California case. Those decisions haven’t been published yet.

          Hawaii law is virtually identical to the California law in that “good cause” in California is replaced by “exceptional case” in Hawaii law. The other difference is that in California, even in the most restrictive counties, some people get CCW permits. In Hawaii, NO ONE has gotten a permit in the whole state for at least 10 or 15 years, and they intend with all their might to keep it that way. So even if Baker basically says “Peruta: ditto”… the legislature, governor, attorney general and police will do everything in their power to prevent it from happening… in my lifetime at least.

            1. Yes. They held one hearing during which they heard the oral arguments in Peruta, another California case, Richards v. Prieto, and the Hawaii case, Baker v. Kealoha. You can listen to the oral arguments for the whole group, or individually, on the Ninth Circuit website, as they do ask some questions linked to previous arguments that day. From listening to the judges in the Peruta presentation I’d never have guessed they have returned such a strong decision. I’m hoping for the same for Baker, as it is virtually identical to the “good cause” requirement, with, as I say, the exception that the police chiefs of Hawaii have never granted a CCW permit, never having found an “exceptional case” that would meet their subjective and unknown criteria. It’s clearly “no issue”… and if Peruta is unconcsttutional, the Baker is also.

  9. We just need to do our best to make sure there isn’t an anti in White House in 2016.

    I’m assuming this issue will hit the SCOTUS sooner or later. We really don’t want Hillary appointing any justices before then.

  10. So, if this means we have to look to one of the East Coast cases for a possible SCOTUS consideration, what effect will Peruta not being appealed en banc have on that?

    1. Pretty big.

      As the 2 judges in Peruta noted, this makes a 2/3 circuit “split” in the nation. That means of five circuits (federal appellate courts each responsible for large swaths of geography), three have said there is no right to bear outside the home; while two have said there is a right (and strongly indicated the same).

      That is a problem in our federal republic. While each state can make some decisions on their own with the powers that are not reserved for the federal, they cannot treat civil rights differently from their neighbors – or even differently from the guys across the country. Remember there is no such thing as “states rights”, because states are governments and only people can have rights – states have ‘powers’. People are exclusive owners of rights, and if a fundamental right is recognized differently across the USA, the Supreme Court is there to arbitrate the differences.

      So basically, there has not been a stronger case in decades for the Supreme Court to review a difference in the treatment of a fundamental right in the US as there is today in New Jersey, Maryland and elsewhere.

      If they don’t take up Drake (NJ case), then that is a signal that something is very wrong on the court regarding 2A outside the home.

  11. Very interesting development.

    However, all it takes is one Ninth Circuit judge to call “sua sponte” (spontaneously) for en banc review to force the court’s judges to vote on whether to do it.

    There are a lot of liberal judges on the Ninth, and that number includes some true hard-charging leftist types like Stephen Reinhardt, who is still on active status at age 82. He wrote the Ninth Circuit’s main anti-individual rights 2A opinion in Silveira v. Lockyer, several years before Heller was decided.

    Reinhardt is no pragmatist. He routinely issues aggressive leftist decisions even when it is obvious this is just going to provoke a certiorari grant and give the more conservative SCOTUS justices the opportunity to resolve the issue the other way for the entire nation by reversing him.

    I suspect at least someone on the Ninth will get restless and refuse to let this one go, and will call sua sponte for en banc. But perhaps I’ll be proven wrong.

  12. I would suspect a flurry of calls went out from San Diego to various chambers after the decision, and either the calls went unanswered, or the response was not to SD’s liking.

    Liberal-Progressives have, in some corners, a blind faith in the de facto correctness of their causes and may welcome this circuit split as a way to get SCOTUS to ‘prove’ them right (not likely), at the cost of losing on a national level.

    March 7th is the next date to watch now (deadline for a sua sponte motion for rehearing). Then we wait until mid-May to see if a petition for cert issues to SCOTUS, from SD.

    I read Gore’s memo last night and the first thing I recalled was training puppies. Gore rolled over on his back in the classic submission posture, pissed himself, and is probably in a corner now. Crying and slowly rocking to and fro. That doesn’t mean some other member of the pack won’t try to intervene, but it’s a good development.

    1. Gore is also an elected official in a county that is not Los Angeles or Marin. He has to face re-election. I am sure that played a role. So too did the fact his budget comes from the SD City Council, where the majority is republican. Granted, he can “take” a certain amount of budget, but he’d have to fight for it.

      And then there is the thought he is playing chess, and avoiding the fight so not to embolden our side with a certiori petition. I don’t put much stock in it, because frankly he could have held that day well into 2016 in a circuit that cannot take a piss without a two year wait. And keep in mind Nordyle took a decade. They know how to slow walk cases they don’t like.

      No. This was not anything more than a politician deciding he had run out of rope.

      Still, the dude needs to go down in the next election.

  13. “I have carried a revolver; lots of us do, but they are the most innocent things in the world.”

    – Mark Twain

    So much fuss over what is such a minor practical matter on a daily basis – it’s just common sense to carry a gun for protection, yet the communist liberals are bent on denying us the right to carry because it defeats their totalitarian agenda that they have in mind for us.

    Mark Twain moved on from revolvers. Nice pic of Twain with a Browning:

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