John Richardson notes that late Friday, the 9th Circuit Court of Appeals stayed the mandate in the Peruta case. It’s worth noting that San Diego already agreed to start issuing on a shall-issue basis. I was very intrigued with Dave Hardy’s line of thinking:
Quaere: since the Defendants have announced they will issue CCW permits to all law-abiding folks, is there even a “case or controversy” left, or is the case moot?
Good question. What happens from here will be interesting. Hopefully the Court here just wants to appear to be reasonable, but will find that neither party has any standing to intervene. No state law was challenged here, only the sheriff’s interpretation of “good cause.”
15 thoughts on “Peruta Stayed”
My prediction: They will give her the intervening authority and she will grant her en banc.
Sure, San Diego is taking new applications with “self defense” accepted as good cause. But they also announced they’re only taking 4 applications a week. I imagine there’s quite a bit more than 208 people a year who want a CCW license in a city of over 1 million people.
I hate to be so pessimistic, but it seems likely that the Dems in Sacramento will pull back issuing authority from the counties and craft an onerous awful “shall” issue law.
They won’t have a solid block of Blue Dogs to force semi-reasonable compromise as happened in Illinois.
“Sure, you can get a shall-issue permit. Just take 80 hours of training every year, pay $1000 in fees, and you can open carry a single shot cap and ball pistol on every second Tuesday where there’s a full moon as long as you’re more than 1000 feet from a school, bus stop, restaurant, public building, public throroughfare, or politician.
Unless you’re a licensed Security Guard with the right connections in which case, carry on.”
Honestly the best thing to come out of en banc would be a clear bitch slap from the court. However I fear that the Californians will push the envelope again with crazy restrictions and hope that 9th circuit district courts ignore Peruta’s intent, or that another en banc review of whatever restrictive laws follow Peruta draws a more favorable panel of judges for them. As they stated in the Heller and McDonald dissents… the judges that oppose this right seem to have little issue throwing out precedent on this topic. A clear en banc slap down would take the wind out of some of those efforts.
Not that logical consistency matters to Sacramento, but that would contradict their own claims in this very case that the Sheriffs need the ability to examine folks on a case by case basis prior to issuing.
I think you are being overly pessimistic, but I’m known to take rationality for granted.
In any event, San Diego is almost a sideshow on the “practical” side. Venture and Orange Counties are taking applications as normal and they are flooded. Those are the counties bracketing LA County proper, containing the “Greater LA Metropolitan Area”.
That’s where the push-back against any further regs will come from, a mass of voters who get permits in hand and then have the risk that the Sheriffs/State will rescind them. The key here is to get more people with skin in the game, hopefully the already real “shall-issue” counties are seeing a bump as well. Politicians respect numbers.
The answer to Hardy’s question — and as an attorney, he really ought to know this — is, emphatically, “no”. Voluntary cessation doesn’t moot litigation.
Also, I really wish gun people would stop saying things like this:
No state law was challenged here, only the sheriffâ€™s interpretation of â€œgood cause.â€
as if it’s somehow legally consequential. It isn’t. The fact that this was an as-applied rather than a facial challenge is completely irrelevant to the state’s motion to intervene. See, for example, Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979).
Citations good, but the fact is the state argued ad nauseum that the issues in Peruta were not of state interest is germane.
The fact is most of us have been following this case (and others) for years, and we take semantic shortcuts from time to time, so we don’t have to teach all the new looky-loos the intimate particulars. We just give the the Cliff’s Notes version of what the AG herself has said in multiple instances – that the state law is not an issue in Peruta. She actually filed a brief to that effect, in order to successfully remove the state as a defendant, on the basis of her opinion that the state law was not being challenged.
But as an attorney, you probably knew that.
The fact is most of us have been following this case (and others) for years, and we take semantic shortcuts from time to time
I am well aware of the propensity of armchair attorneys to spew amazing quantities of absolute gibberish. I used to be one of them.
Do you charge your clients to call their opposition names, or do you actually get into those pesky little things called â€œdetailsâ€?
Like the fact that the statement you so cleverly call out in my OP was correct? That my words need not be fanciful or acutely analytic, because it was restating the actual arguments made by the CA AG herself?
I was trying to be nice. But I really think your snark hides a deep lack of confidence evidenced by your inability to accept that the recitation (from meâ€¦some kind of Morlock or something) was (gasp) correct and true. Your immediate run to “I am a lawyer” exposes a lack of confidence common among the Elite; rather than rely on raw internally generated argument and fact, you throw up a spear of external credentials that in your mind will end the discussion.
Simple fact: the AG said to a court of law, â€˜no state law was challenged here, only the Sheriffâ€™s interpretation of it.â€™ (an admitted paraphrase, but you can find the citation I presume). She did this in the course of arguing that the affection of state law was so slight, so miniscule â€“ that the court should remove the state as a party to the action because there was no nexus between the question before the court and the law she is charged to defend.
You say this not legally consequential, because presumably you thought I came to this conclusion using my simple Morlock brain, instead of actually performing simple reading comprehension. So anything I say (you donâ€™t know meâ€¦) is wrong. Because you calim to be a lawyer. Or something.
What the AG said is fact. The court record is there for an enterprising (or even a poor) lawyer to read. The consequence of that fact is up to a court to decide. What is not up for consideration is the fact itself, despite your elitist brain determining that it was not true.
In fairness, I am not an attorney. I pay a half dozen good attorneys already. Why would I want to me one myself?
Translation: “I can’t provide links to what I’m claiming the CA-AG argued, nor can I articulate a legal principle under which it would actually be of legal consequence in this case. But I am deeply, deeply butthurt that a legal professional noticed. So I’m going to spend seven paragraphs complaining about what a condescending jerk that guy is for suggesting that I stop talking crap. No, I’ve never heard of the Dunning-Kruger effect; why do you ask?”
Translation: “I was wrong and cannot admit it, therefore I will prattle on about how awesome it is to have suffered through law school and keep calling you names.”
If you want to continue friendly debate, please answer one simple question: did the state voluntarily argue that the issues in Peruta were not state issues, in order to remove themselves as parties to the complaint?
That’s the argument, and what set you off on your tearful diatribe about we “armchair lawyers” who dare actually read from the Oracle’s secret papers; papers which only the Chosen Ones can discern context.
I called you elitist. I want to be clear that I didn’t do so because you claim to be a lawyer. Indeed, I have several good friends who are attorneys and are far from elitist. The reason I called you out was because you appear to view the law as a barrier to be held against the people, and see yourself as the barrister who may singly define its view for lay people. Your posts have a constant theme – the law is not something to be considered by those subject to its writ, but only as the exclusive domain of “professional lawyers”.
I’d like to see your views on that, as well. But first and foremost: is it incorrect to say that the state claimed, “No state law was challenged here, only the sheriffâ€™s interpretation of good cause.”?
The reason I called you out was because you appear to view the law as a barrier to be held against the people, and see yourself as the barrister who may singly define its view for lay people.
I’m going to let you in on a little secret, Patrick. The most important thing one learns in law school isn’t, as it happens, the law. Sure, aspiring attorneys spend countless hours studying hornbooks and casebooks to learn and memorize arcane legal rules. But while part of legal education, it’s not the point of legal education.
The really indispensable thing you learn in law school is legal analysis. You will sometimes hear this described as ‘thinking like a lawyer.’ It involves being able to look at a set of facts, use your knowledge of the law to distinguish the legally-significant facts from the legally-inconsequential ones, and then explain how the law should apply in light of those facts. Laypeople can’t do this, because like any skill it takes time and effort to learn — time and effort that, because they made different educational and vocational choices, they simply haven’t put in.
I appreciate the frustration laypeople feel when they opine on the law and are told by lawyers that their arguments are ignorant or incompetent. Believe me, I get it — it’s part of what motivated me to want to become a lawyer. You have the briefs, right? You can read. You’re intelligent. Why do lawyers have to act like — to use your words — the law is a barrier to be held against the people, and they alone have the ability to define it?
It’s because we’ve put in the time and the effort, Patrick, and you haven’t. We’re not a caste of priests who imagine ourselves ordained by the Almighty; we’re just people who’ve worked hard to develop expertise that you don’t possess. It’s that simple.
To answer your question: It’s incorrect to claim that, and it’s incorrect to say that the state claimed that. The CA-AG was not named as a defendant in Peruta (link), and while the Circuit panel requested argument from the parties about the significance of the state’s absence from the appeal (link), the CA-AG never once filed paper in the case until its motion to intervene late last month.
The CA-AG did try to have herself dismissed as a defendant in a different case, Mehl v. Blanas, by disclaiming any state interest in a local interpretation of the “good cause” requirement. But since Mehl was dismissed for a lack of standing, it’s highly unlikely the CA-AG’s arguments in Mehl will matter in the slightest in Peruta.
I don’t know BC or the other people involved personally. But BC might want to refrain from posting snarky comments about 2A scholars who have been cited in Supreme Court decisions. Just a guess, but they probably know what they are saying and why.
Look. Dave Hardy is a smart and respected guy, but even the best of us occasionally have brain cramps. Every 2L in the country learns about justiciability issues like the mootness doctrine, including the exceptions to it, in the first two weeks of their ConLaw class. It’s extremely basic stuff.
I have enormous respect for Dave’s contributions to 2A jurisprudence, but that was a silly argument and he ought to know better. That’s all.
Just one more observation on reality;
Even though the Orange County Sheriff announced she too would begin ‘shall issue’ of CCW, the delay in application process is going to make you believe it wasn’t a real serious change of heart or policy. As of shortly after the 9th Circuit decision, and the OC Sheriff’s policy change announcement, applicants were being given interview dates for their permits in August 2015. Sounds similar to the San Diego process of ‘4 per month’, eh??
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