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Peruta STANDS! Update post 70: Nope

This will get even weirder if Sheriff Gore just files something similar to his April letter. Regardless though it'll essentially be what the AG and Brady center wanted, the case is reheard and they still get to file briefs (as Amici at a minimum).
 
terraformer said:
Yes. This is a bigger deal in the west than it is here. Here it happens all of the time. The SJC took both Caetano and Holden on sua sponte as well as Reyes and McGowan back during the storage wars of 2013.
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Holden and Caetano didn't go up sua sponte. They were cherry-picked to be sure, but the SJC didn't jump in on a lower court.

ETA: The dissenting judge in Peruta - Judge Sidney Thomas, a Clinton appointee in Montana - is now the chief judge in the 9th circuit and apparently is the one who issued the sua sponte call. This is going to get interesting. (as if it wasn't already)
 
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Knuckle Dragger said:
Holden and Caetano didn't go up sua sponte. They were cherry-picked to be sure, but the SJC didn't jump in on a lower court.
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They both bypassed any appelate review. Both were DAR and not FAR. That's effectively sua sponte because the SJC prevented the appeals court from hearing the case first to sharpen the case and weed out the losers and procedural nightmares. After district court, both were filed as appeals with DAR requests because it's pro forma to do so in gun cases these days because the SJC takes them. In Holden's case at least, both parties had briefed the issue prior to knowing the SJC was going to step in. In Caetano the parties knew they would be in front of the SJC during briefing iirc. In Holden I was actually unsure if we could file an amicus because of the DAR not being granted until after briefing. Eventually the SJC posted their request opening the door.

When the court makes clear they will take cases of a certain type DAR, it grants them their choice of what cases to take bypassing the appeals court. They are doing this intentionally as they would an appeal filed without the DAR. This allows them to cherry pick cases and its no different than sua sponte in fact, even when it's not technically sua sponte. All of the same issues exist and they both track directly to case by case decisions by the SJC.
 
Peruta Goes en banc

Oh boy....

THOMAS, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Federal Rule of Appellate Procedure
35(a) and Circuit Rule 35-3. The three-judge panel opinion and order denying
motions to intervene shall not be cited as precedent by or to any court of the Ninth Circuit.
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Order
 
It's amazing how legal decisions can be so compact and precise, yet difficult to understand at face value. I feel compelled to translate (as a lay person):

Basically it's a "do over" or a "Mulligan", only with the entire Ninth Circuit presiding, I gather

I found this with some googling:

Grounds for Rehearing​
Although petitions for rehearing are filed in a great many cases, few are granted. Filing a petition solely for purposes of delay or in order merely to reargue the case is an abuse of the privilege. A petition for rehearing must contain an introduction stating that, in counsel's judgment, one or more of the following situations exist:​
1.
​
a material factual or legal matter was overlooked in the decision;​

2.
​
a change in the law occurred after the case was submitted and was overlooked by the panel;
​

3.​
the opinion is in conflict with a decision of the U.S. Supreme Court, this court, or another court of appeals and the conflict is not addressed in the opinion; or​

4.
​
the proceeding involves one or more questions of exceptional importance.​

The petition must state with particularity the points of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Fed. R. App. P. 40; Loc. R. 40(a) & (b).​

Grounds for Hearing or Rehearing En Banc
​
Hearings and rehearings en banc are not favored and ordinarily will not be ordered unless: en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a).
​
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From Wikipedia:
In law, an en banc session is a session where a case is heard before all the judges of a court – in other words, before the entire bench – rather than by a panel selected from them.[SUP][1][/SUP][SUP][2][/SUP] The equivalent terms in banc, in banco or in bank are also sometimes seen.
En banc is often used for unusually complex cases or cases considered to be of greater importance.[SUP][2][/SUP] Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (generally consisting of only three judges) in which the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court.[SUP][3][/SUP] In rarer instances, an appellate court will order hearing en banc as an initial matter instead of the panel hearing it first.
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Because kamela harris CA AG wants to get involved when she was lazy and not paying attention for the original hearings. 9th is a very liberal court.

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goodzilla said:
It's amazing how legal decisions can be so compact and precise, yet difficult to understand at face value. I feel compelled to translate (as a lay person):

Basically it's a "do over" or a "Mulligan", only with the entire Ninth Circuit presiding, I gather

I found this with some googling:



From Wikipedia:
Click to expand...

It's not the entire 9th who will hear it. The 9th is so big (many more judges than other appeals courts) only 1/3 or something like that hear it.
 
Hoover said:
Because kamela harris CA AG wants to get involved when she was lazy and not paying attention for the original hearings. 9th is a very liberal court.
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That was my other take away, that the Ninth Circuit is going to lose it's street cred as a liberal court if Peruta stands, so therefore they better re-try and use all the judges to overpower those three knuckleheads that gave us a favorable ruling.
 
terraformer said:
The interesting part is this: "order denying motions to intervene"
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Very interesting indeed. Read literally, that means the en banc, and the "do not cite" order, is on the motion to intervene topic alone, and the primary second amendment related Peruta decision is still good law, citable and not currently on the table to review en banc. Of course that's up next if the motion to intervene is reversed/granted. But at least the Peruta 2A decision is still citable and able to influence other decisions for the moment if I read this right.
 
It's getting better and better (not). The 9th circuit granted en banc review to Richards as well. This was the other CA carry case that was heard by the same panel, on the same day as Peruta. Judge Thomas, now the Senior Judge in the circuit, was the lone dissenter in Pertua, Richards, and Baker - the Hawaii case before the same panel.

I believe the question before the court with Peruta is istantervenor tus for the CA AG.

11-16255 Adam Richards, et al v. Ed Prieto, et al "Chambers Order Filed For Publication"

Docket Text:
Filed Order for PUBLICATION (SIDNEY R. THOMAS) Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition shall not be cited as precedent by or to any court of the Ninth Circuit.
Click to expand...

These are being fast-tracked as well. Oral arguments are in June!
 
terraformer said:
That's boiler plate on any en banc rehearing. The interesting part is this: "order denying motions to intervene"

That this shall not be considered precedent is very interesting.
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It means the rules are only suspended when preparing to overrule pro-2A decisions and not for other purposes.


Is any of this good or bad for gun rights?
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Bad. Our side won. If en banc was not granted, CA carry permits for the little people would be the law of the land. Remember, our side won in MD but that was overturned on appeal.

The granting on en banc is unusual in a case like this, and suggests that the judges don't really like the existing decision.

Do you think there is any chance our side would have been granted an en banc of the opposition had won?
 
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Rob Boudrie said:
It means the rules are only suspended when preparing to overrule pro-2A decisions and not for other purposes.




Bad. Our side won. If en banc was not granted, CA carry permits for the little people would be the law of the land. Remember, our side won in MD but that was overturned on appeal.

The granting on en banc is unusual in a case like this, and suggests that the judges don't really like the existing decision.

Do you think there is any chance our side would have been granted an en banc of the opposition had won?
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wont this catch the ire of SCOTUS? and out of curiosity can SCOTUS grab its own cases before they are appealed to that level?
 
matt9112 said:
wont this catch the ire of SCOTUS? and out of curiosity can SCOTUS grab its own cases before they are appealed to that level?
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I have never heard of SCOTUS taking a case sua sponte and the Article III standing requirement of an "actual case or controversy" my preclude that possibility. The SJC is not bound by this requirement and can do things like issue advisory opinions and pick its own cases as we've seen it do on several occasions.

Assuming that there isn't a constitutional problem with SCOUTUS granting certiorori to cases sua sponte, the practice would be would only make the court appear to be even more political that it is now.

The truth is that no one (other than nine people) know why the court hasn't taken a carry case yet. I have two ideas.

One, is that they're waiting for all relevant cases to work their way through the lower courts. This makes sense because they like the lower courts to do all the heavy lifting and think through the legal issues for them.

On the other hand, in many ways the court doesn't not like to move too fast and get out ahead of where public sentiment lies. They may still see carry as controversial enough that it's not ripe for adjudication.
 
Knuckle Dragger said:
On the other hand, in many ways the court doesn't not like to move too fast and get out ahead of where public sentiment lies. They may still see carry as controversial enough that it's not ripe for adjudication.
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If so, they have not been paying attention the past 30 years. The movement now isn't toward carry, it's towards constitutional carry. Kansas is joining that group next week when the gov signs the recently passed bill, WV will join next session since the gov vetoed this yr's.

The 9th isn't hearing the en banc until June, right? So that would mean a decision (barring the delay tactics from some) in the fall and the earliest SCOTUS could take it up Jan 2016?
 
Coyote33 said:
Could you please explain the difference?
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Constitutional carry is carry without a permit. This used to be the case only in VT. AK, AZ, VT and WY* and perhaps some others have constitutional carry. Reportedly OK recognizes constitutional carry on a reciprocity basis.

* - Reportedly only for residents
 
The legal bills should come out of these clown's salaries (and also adjust their pension calculations if any are close to retirement.)
 
Rob Boudrie said:
Constitutional carry is carry without a permit. This used to be the case only in VT. AK, AZ, VT and WY* and perhaps some others have constitutional carry. Reportedly OK recognizes constitutional carry on a reciprocity basis.

* - Reportedly only for residents
Click to expand...

Arkansas is constitutional carry. WV passed it this year but the Gov vetoed it. Just a matter of time before is law there, they have the votes to override the veto but can't right now because the session ended. Utah has passed it but the pos gov vetoed it so at some point that will be law there. Kansas has passed it, the gov is expected to sign it this week. I think we'll see Tennessee pass it this year too. Maine's gov should be an automatic if it gets through the legislature there which looks promising.

Vermont was the only one until 2003, that year Alaska joined them.

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Coyote33 said:
Could you please explain the difference?
Click to expand...

Here is some info. Also, check out the list of states who have passed bills in some way for con carry.

http://en.wikipedia.org/wiki/Constitutional_carry
 
No state is truly con carry, because they all have restrictions.

"Unlicensed carry" is the better term.

Oklahoma doesn't count, since they require a license, just like TN.
 

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