On February 13, the Ninth Circuit issued the decision in Peruta. That opinion 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 rather than a general desire for self-defense. (See http://www.law.com/sites/jamesching/2014/04/12/tactical-considerations-in-the-pending-motion-en-banc-to-review-ninth-circuits-peruta-decision-on-the-second-amendments-effect-on-concealed-carry-permit-issuance-in/)

Peruta is now before the Ninth Circuit on the Attorney General’s petition for an en banc hearing and motion for intervenor status. The intervention motion is predicated on the Sheriff’s very public announcement in the press that he would not participate in the appeals process.

Therefore, in order for the appeal to proceed, beginning with an en banc review, the State, through the Attorney General, had to be granted intervenor status or there would be no party defending the old permit system. Indeed, the motion to intervene by the Attorney General stated that the Sheriff has “declined to pursue further review.” No action has been taken by the Ninth Circuit on the Attorney General’s February 27 motion. (The following discussion ignores the Brady Campaign’s Motion to Intervene for reasons discussed in my prior article.)

In terms of the record on appeal, the Sheriff is not the appellant and therefore did not initiate the appeal. The Sheriff was not heard from until April 4, when his counsel filed a letter with the Court which simply stated that the Sheriff had directed counsel not to file anything further in the appeal and therefore counsel would not file a response to the Attorney General’s motion to intervene. This statement seems to skirt the obvious question of whether the Sheriff was not a party to, or perhaps was abandoning, the appeal. The Ninth Circuit’s last Order therefore demanded that the Sheriff file his position on the pending motion to intervene or that he take no position on it.

In some sense, the Sheriff’s response is a formality in that, if, as the Sheriff has previously announced in the press, he wants no part of an appeal of the decision, he simply has to reiterate this position with a filing with the Court. Assuming that the Sheriff does not change his mind, his absenting himself from the appeal would be a predicate to consideration of the Attorney General’s status on appeal and would seem to bolster the chances of the Court granting intervenor status to the Attorney General.

Much more interesting is the Court’s second point in its Order, the possible mootness of any appeal. Citing an Opposition to Petition for Rehearing En Banc filed in Richards v. Prieto, No. 11-16255, a companion case to Peruta undermining the Yolo County permit system, the Ninth Circuit asked for the Sheriff’s comments on the following Opposition contention:

“Even were Peruta vacated tomorrow, neither this Court nor the state could do anything to keep [the Sheriff] from printing permits to all otherwise-qualified comers. The Peruta dispute is moot.”.

The Sheriff is therefore being asked to detail any change in his policy that could affect the Court’s jurisdiction over this case. Whether or not the Sheriff is in the case on appeal, he must update the Court as to his implementation of the Peruta decision.

The Sheriff, on February 22, had issued a press release stating: “Should the decision of the Ninth Circuit become final, the Sheriff’s Department will begin to issue [weapons permits] in situations where the applicant has met all other lawful qualifications and has requested a [weapons permit] for purposes of self-defense,” i.e. without requiring that the applicant for the concealed weapons permit show good cause. The Sheriff, then, having openly and publicly abjured the appeal, is simply waiting for the en banc motion to be denied, with or without the Attorney General as an intervenor.

The Sheriff’s answer to the Court on mootness has to be that, as stated on his website, he has not yet issued permits to all comers but that he will do so as soon as the decision is final. (http://www.sdsheriff.net/licensing/ccw.html) While the Ninth Circuit’s request for the Sheriff’s comment on mootness may seen dramatic, it seems his answer is clear under the circumstances.

As to whether the State could do anything to prevent the Sheriff from issuing permits as he pleases, the answer is that the State Legislature could pass legislation totally revising the administration of gun permits, for example, taking decision-making from the counties. The Peruta decision would then be moot. While the likelihood of this happening during the pendancy of the Peruta appeal is slim and none ever, it is theoretically possible.

The contention about mootness in the Richards Opposition is factually wrong as to the Sheriff and the State and therefore its legal conclusion is flawed. Peruta could not be moot because no changes have occurred in permit procedure and none will occur until the case is final.

There is a more subtle point implicit in this discussion of mootness. The Peruta decision was a reversal of the District Court’s errorneous denial of summary judgment to Peruta. Therefore, the case was simply reversed and remanded to the District Court.

Although the decision was a landmark discussion of the Second Amendment, nothing was actually finalized on the merits of the complaint. Grants of summary judgment may be appealed, but reversals of grants of summary judgment have no instant determinative effect on the complaint in the trial court. Without a final judgment from the District Court in accordance with the legal principles announced in Peruta, nothing is settled as to the merits of the complaint.

In other words, the words pronouncing the end of good cause have to be pronounced by the District Court, presumably upon re-consideration of Peruta’s summary judgment motion and undoubtedly upon a new hearing on that motion.

If returned to the District Court for re-consideration of Peruta’s motion, it is clear that at that point the Attorney General may intervene, within the trial court’s discretion, whatever the Sheriff’s capacity in the trial court. The less active role the Sheriff takes, the more likely that intervention will be granted.

Thus, it is possible that the Attorney General’s best strategy on appeal is no appeal at all. Based on the May 1 order, the Attorney General should abandon its motion to intervene and en banc consideration in the Ninth Circuit, intervene on remand in the trial court, and then take an active role during and after the trial court’s ruling on Peruta’s motion for summary judgment.