Tactical Considerations in the Pending Motion En Banc to Review Ninth Circuit’s Peruta Decision

“While the Ninth Circuit’s decision in the Peruta case is a landmark ruling on the substantive law of the Second Amendment, the pending en banc motion before the Ninth Circuit exemplifies the tactical decisions which dominate high-stakes issues on the appellate level.”  

On February 13, the Ninth Circuit issued a decision in Peruta v. County of San Diego, No. 10-56971.  That case held that San Diego County’s concealed carry permit system violated the Second Amendment because it required “good cause” for the issuance of the permit and not a general desire for self-defense.

On March 5, the Court issued an opinion on a Yolo County concealed carry permit system.  (Richards v. Prieto, No. 11-16255)  Yolo County’s policy provides that “self protection and protection of family (without credible threats of violence)” are “invalid reasons” for requesting a permit.  The dissenter noted that absent Peruta, the proper disposition of the case would be to uphold the Yolo County good cause requirement on the grounds that, upon intermediate scrutiny, carrying concealed weapons in public is not conduct protected by the Second Amendment.  The opinion is unpublished and therefore is not precedent.  Its viability obviously turns on Peruta.

Peruta is now before the Ninth Circuit on the State of California’s petition for an en banc hearing.  The February 27 motion provides time for a period of reflection aboutwhere the parties are in this case.  An en banc hearing is not generally a necessary step for the appeal of a decision to the Supreme Court and the factors leading the State to seek such a hearing reveal much about the intricacies of appellate litigation on big issues.

The Peruta issues are contentious and the public discussion around it is tumultuous.  (See “California Gun Laws Under Fire,” The Recorder  (03/14/2013))  Although the substantive law will obviously be initially discussed, no advocacy of any position on the Second Amendment issue is intended.  Rather, the aim is to illustrate how a relatively obscure rule of federal appellate procedure may have much to with the spin put on a devisive public issue.  (See generally, “Appellate Advocacy: Managing the Dialogue,” ALI-ABA Practice Manual for Trial Advocacy (ISBN 0-8318-105-5) )

The San Diego County Concealed Carry Permit System

In general, California  prohibits the open or concealed carrying of a handgun, whether loaded or unloaded, in public.  (See Cal. Penal Code sections 25400 (prohibiting concealed carry of a firearm); 25850 (prohibiting carry of a loaded firearm); and 26350 (prohibiting open carry of an unloaded firearm)). But permits to carry a concealed weapon may be granted by local jurisdictions, i.e.  the city or county in which the applicant resides.  (Sections 26150, 26155)  These jurisdictions, in general, rely on the applicant’s showing of, among other things, good moral character, completion of a training course and good cause for requesting the permit.

The State delegates to each city and county the power to issue a written policy setting forth the procedures for obtaining a concealed-carry license.  (Section 26160)  San Diego County’s policy states that good cause may arise in “situations related to personal protection as well as those related to individual businesses or occupations.” However, concern for “one’s personal safety alone is not considered good cause.”

The Sheriff has the power to grant concealed-carry licenses in San Diego County.  Since 1999, the Sheriff has required all applicants to “provide supporting documentation” in order “to demonstrate and elaborate good cause.” This “required documentation, such as restraining orders, letters from law enforcement agencies or the [district attorney] familiar with the case, is discussed with each applicant” to determine whether there is  a sufficiently pressing need for self-protection.

Peruta was an applicant who could not establish good cause under the County guidelines.  In the district court, the County’s policy was upheld under intermediate scrutiny.  California’s “important and substantial interest in public safety”—particularly in “reduc[ing] the risks to other members of the public” posed by concealed handguns’ “disproportionate involvement in life-threatening crimes of violence”—trumped the applicant’s allegedly burdened Second Amendment interest.

The Holding of the Peruta Court

The core of Peruta’s claim is that by defining “good cause” in San Diego County’s permitting scheme to exclude a general desire to carry for self-defense, the County impermissibly burdened his Second Amendment right to bear arms.

The key precedent for Peruta is District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).  In Heller, the Court upheld a Second Amendment challenge to a District of Columbia law that “totally ban[ned] handgun possession in the home” and “require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock.”

The Supreme Court concluded that the Second Amendment codified a pre-existing, individual right to keep and bear arms and that the “central component of the right” is self-defense.  Because “the need for defense of self, family, and property is most acute in the home,” the D.C. ban on the home use of handguns—“the most preferred firearm in the nation”— and the mandatory trigger lock failed “constitutional muster” under any standard of heightened scrutiny.

In McDonald, Chicago inposed a ban similar to the District of Columbia and the Supreme Court concluded that the Second Amendedment restricted both the federal and state government under the Fourteenth Amendment.

The Peruta court began by defining the Second Amendment right to bear arms as the right to to wear, bear, or carry a weapon upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for defensive action outside the home, i.e. in public.

Having decided that self-defense outside the home is part of the core right to bear arms and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego County’s policy of imposing a good cause requirement above and beyond the Second Amendment right.

The Peruta court reiterated Heller’s ruling that that no matter what standard of review to which the Court might have held the D.C. restrictions,  “banning from the home the most preferred firearm[, a handgun] in the nation to keep and use for protection of one’s home and family would fail constitutional muster.”

Thus, the Peruta court held that the relevant question was not whether the County allowed “some people to bear arms outside the home in some places at some times” but whether the permit system is so restrictive as to destroy the right of the average citizen to carry a weapon simply for self-defense.

The permit system clearly imposes good cause as a restriction on carrying for self-defense and is void for that reason.  This is particularly so because California has chosen to ban open carry of weapons as well as to require good cause for concealed carry.  Because this statutory structure evidences a legislative preference for concealed carry if there is any carrying at all,  California, through its highly-restrictive permit requirement of good cause, has effectively cut off the exercise of the right of the citizen altogether to bear arms and rendered the right useless.

Immediate Aftermath of the Decision

The various County Sheriffs reacted in different ways to the Peruta  decision.  Some, such as those in Orange and Ventura Counties, have decided to comply.  San Diego County itself stated it would have nothing more to do with the case and the California Attorney General has stepped in despite the fact that she only participated in the Peruta  case as an amicus curiae.  Peruta has stated his position that the Ninth Circuit may permit the Attorney General to carry the litigation further.

En Banc Consideration and Current Status of the Case

On  February 27, the Attorney General filed a petition for en banc consideration of the opinion as “Proposed Intervenor-Appellee” because it was not a party to the Peruta trial litigation, only an amicus curiae.

A similar motion to intervene was filed by the Brady Campaign to Prevent Gun Violence but its prospects are less good than the Attorney General’s because the Campaign’s ability to represent the interests of the plaintiffs is more limited than the Attorney General’s and is unsanctioned by any law.  Moreover,  the Campaign has taken the position that it does not need to intervene if the Attorney General is allowed to intervene.  Similar considerations apply to the cursory suggestion by the California Police Chiefs’ Association, itself a private organization of public officials.

The Campaign has argued that a Ninth Circuit order, Day v. Apoliona, 505 F.3d 963 (9th Cir. 2007), which vindicates a state’s right to intervene when not a party to the trial litigation if denying intervention would “foreclose further consideration of an important issue because of the positions of the original parties.”  If the discretionary factors listed in that case are considered, it seems unlikely that the ruling would not extend to private parties.

Under Rule 35 of the Federal Rules of Appellate Procedure,  a hearing en banc is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.

On March 26, Peruta conceded that the Attorney General could represent the Sheriff on the Ninth Circuit’s discretion under either Rule 24(a)(2) or 24(b) of the Federal Rules of Civil Procedure governing intervention.  The concession included a ground for mandatory intervention, Rule 24(a)(2), that the Attorney General “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest” and a ground for permissive intervention, Rule 24(b).

The former ground tracks the somewhat imprecise language of Day, although Day seems to conflate some of the language of this criterion for mandatory intervention into a discretionary criterion.

As to the latter, Peruta earlier in the brief had denied that any federal statute gives the Attorney General grounds for permissive intervention, so his concession cannot refer to subdivision 1(A), conditional right to intervene under a federal statute, or, for that matter, the subdivision 2 criteria for intervention by a government official.

Peruta’s concession must therefore be under subdivision 1(B), that the proposed intervenor “has a claim or defense that shares with the main action a common question of law or fact.”  However, it is difficult to match the ground set forth in subdivision 1(B) with any coherent analysis of the case in the trial court, as the Sheriff adequately defended on the basis of the law and fact in his County.  This in turn was the only basis of the case.

Not unsurprisingly, the Attorney General accepted the concession and agreed with Peruta’s analysis of the intervention issue.  The Attorney General argued that Peruta’s concession and the discretion awarded to the Circuit in Day made her intervenor status necessary.  Moreover, she argued that as the chief law enforcement officer for the State, she was entitled to defend issues of state-wide law.

In any case, the apparently easy issues of whether the matter should be heard en banc is somewhat clouded.  The status of the State of California is not predetermined by the concession by Peruta.  Under Day, the Attorney General bears the burden of demonstrating that not allowing intervention would “foreclose further consideration of an important issue because of the positions of the original parties.”  Once again, it is difficult to imagine how the Sheriff’s defense of the case caused the foreclosure of an important issue in the case or what that additional important issue might be.

The tactical dilemma for the State is not whether it can summon a majority of the circuit judges who are in regular active service and who are not disqualified to order that an appeal or other proceeding be heard or reheard by the court of appeals en banc but whether the it can appear at all.

The Circuit faces the troublesome issue of whether anyone not a party to the original litigation can become, on motion (or even upon concession of another party), a party on appeal if no major issue is undiscussed or no legal point of view is unaddressed.  The Circuit is not loath either to grant en banc consideration  or extend intervenor status (as exemplified by Day), but in a case of this magnitude, nothing it determines as to the substance of the case or the status of the advocates can be considered final.  If both operate in the case, both will taken to the Supreme Court on certiorari.

Inferred Tactical Considerations for the Parties and the Courts

The author is not privy to the deliberations of the parties and simply suggests that there are approaches to the handling of the case which are inferable from the record.

The State faces a major procedural issue of its standing to continue, if not represent the Sheriff, having never been a party defendant.  Moreover, it has no convenient means of asserting its status if it does not file a petition en banc, as the only other step is to seek certiorari in the Supreme Court where standing would be the first issue for consideration.  Finally, given the liberal nature of the Circuit, the State’s best strategy for reversing Peruta is within the Circuit.

This is particularly so because the only other way to avoid defeat in the Supreme Court is for the Legislature to repeal its ban on open carry.  The chances of this are simply slim and none ever.

Peruta might be thought to have made a major mistake in conceding that the Ninth Circuit could allow the State to intervene.  (Indeed, his concession is so unambiguous as to amount to an offer to stipulate to the State’s status.)  However, Peruta’s aim is to get a Supreme Court decision on a gun control issue and he can’t get there without an opposing party.  Undoubtedly he also realizes that it is only California’s idiosyncratic ban on open carry which gave him the victory in the first place, but a third major decision on gun control would certainly please gun advocates on a national level because of its noteriety.

The Ninth Circuit has clearly indicated its awareness of the State’s questionable status as an intervenor by ordering briefing on the subject.  This has only yielded agreement by the State and Peruta that the State should be granted status as an intervenor.

Ordering intervenor status might be a major mistake by the Circuit.  Day presents an interesting procedural question for the conservative majority of the Court, which has often shown an aptitude for “gateway” decisions involving discretionary access to the courts.

While the Circuit as a whole may be itching to get to the legal question, the Supreme Court could easily grant certiorari and summarily issue an order for reconsideration of the State’s status by the Circuit or issue an opinion regarding the State’s status and reinstate the original opinion simply because en banc consideration was improper.  In sum, the Circuit faces tagging with a grievous procedural error while having the original opinion set in stone.  Thus, even assuming that prevailing en banc sentiment would lead to a reversal of Peruta, disaster awaits if it grants intervenor status to the Attorney General.

The Supreme Court, on the other hand, has no particular interest in hearing Peruta because the most likely outcome, based on Heller, is a 5-4 decision affirming the opinion.  The effect of a Supreme Court in Peruta is marginal as to the national gun-control debate because California law is anomalous in banning open carry as well as restricting concealed carry.

Conclusion

As with any two-sided matter in contention, it is generally unwise to assume that the parties are playing a zero-sum game.  Rather, each side may have asymmetric needs and ends despite the possible either/or decision in the end.  In addition, analysis of the opinion discloses not two, but rather six, institutions keyed to its determination:  gun advocacy groups, the Attorney General, the Legislature, County governments, the Ninth Circuit and the Supreme Court.

California itself faces the negation of its system of gun control without any practical Legislative fix, as the opinion requires both the removal of the abolition of open carry and the elimination of good cause requirements for concealed carry.

Swirling around this prospect, the Attorney General has little to play except delay.  Perhaps the Legislature could be persuaded to bite the bullet, as it were, and modify its open and concealed carry laws, but in any case the Attorney General has no need to hurry and has every incentive to bring the matter before the many members of the Ninth Circuit simply because this necessarily will consume a great deal of time.

Peruta, on the other hand, knows well that en banc consideration will take time, but it is an open question whether that hurts his advocacy of gun rights on the national level.  If en banc consideration occurs with its likely reveral of the underlying opinion, Supreme Court consideration is guaranteed both on the State’s intervenor status and the substance of the opinion.  As the former issue, the parties cannot concede or stipulate to standing and therefore the Attorney General must lose.  As to the latter issue, the Supreme Court will follow Heller.

Assuming this reasoning is correct, the most prudent action for the Circuit is to deny intervenor status and dismiss the Attorney General’s petition for en banc consideration.  This leaves the responsibility for Peruta’s effect on California law on the Sheriff and the Attorney General, with the remedy in the hands of the Legislature.

Afterword:

The Curious Origins of California Penal Code Section 26350

This anomalous provision prohibiting open carry of an unloaded firearm, so crucial to Peruta, was created on January 13, 2011 by AB 144.  Its genesis was a series of armed gun advocates’ meetings in public places such as Starbuck’s.  The ostensible aim of the advocates was to illustrate the virtues of the Second Amendment to the general public and, as was predictable, the display of openly-carried firearms en mass scared the wits out of the cappuccino crowd.  The California Legislature enacted the ban forthwith.

More by | James Ching James Ching , Law.com Contributor
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