Sheriff’s Response to Ninth Circuit Leaves Issue of AG’s Participation in Peruta Appeal Wide Open

[Please consult the Addendum for discussion of Heller v. Dist. of Columbia, No. 1:08-cv-01289-JEB (DDC 05/15/14) [Heller III].]

In Peruta v. County of San Diego, No. 10-56971 (02/13/14), the Ninth Circuit held 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. (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/#ixzz31nmZMr3b)

Peruta is now before the Ninth Circuit on the California Attorney General’s February 27 Motion to Intervene and Petition for an En Banc Hearing. The former is the predicate for the latter, as the Attorney General did not participate in the District Court case and must gain permission to participate in the appeal.

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 key case on intervention is 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.

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. 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)(1)(B), that the proposed intervenor “has a claim or defense that shares with the main action a common question of law or fact.”

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.

The Sheriff, the only defendant in the case, on April 2 his his counsel file an equivocal letter: “My client has directed me not to file anything further in this appeal. As such, 1 cannot file a response regarding the motions to intervene.”

The Ninth Circuit, on May 1, demanded that the Sheriff fish or cut bait on intervention and the additional issue of mootness. (See http://images.law.com/sites/jamesching/2014/05/03/ninth-circuit-issues-order-in-peruta-gun-permit-case-requiring-sheriff-to-clarify-his-status-on-appeal/#ixzz31nvhrt9b. The secondary issue of mootness is not discussed as the probable ruling will be that the issue is not moot, the Sheriff not having implemented any changes in his permit policy.)

The Sheriff replied on May 14. As to the intervention issue, the Sheriff stated: “Appellee believes that the Attorney General is the appropriate intervenor in this case because the panel opinion finds California’s legislative scheme regarding the carrying of handguns unconstitutional. Appellee requests that the Court grant the Attorney General’s Motion to Intervene. Appellee takes no position on other intervenors.”

The Sheriff’s key contention is that the Attorney General should be allowed in the appeal because the opinion found that “California’s legislative scheme regarding the carrying of handguns [is] unconstitutional.”

This response does not even mention Rule 24 or Day and leaves one somewhat in the dark. There is no specification of which of the varying Rule 24 provisions best applies, let alone a discussion on the facts as to why each provision applies or not.

On the other hand, there is no discussion of the facts which may enter into the discretionary intervention permitted by Day. In particular, does existing appellee, the Sheriff, adequately represent the constitutionality of California’s legislative scheme regarding the carrying of handguns and would that issue be foreclosed because of the Sheriff’s position in the trial court?

Peruta stated: “[O]ne may apply for a license in California to carry a concealed weapon in the city or county in which he or she works or resides. [Cal. Penal Code] §§ 26150, 26155. To obtain such a license, the applicant must meet several requirements[, including] ‘good cause.’ Id. §§ 26150, 26155.”

The Sheriff is one of the numerous county officials to whom California law delegates the power to issue written policy setting forth the procedures for obtaining a concealed-carry license and then to issued the license . (Id. § 26160)

It is unclear how Day justifies the Attorney General’s intervention as the Sheriff took a position consonant with the constitutionality of the gun permit scheme in the trial court and in doing so, was obviously defending a county-based system of regulation authorized by state law.

In any case, the Ninth Circuit must rule on the Attorney General’s status in something of a vacuum given the Sheriff’s laconic response. The Sheriff, by implication, has maintained his position as an appellee, as he did not state otherwise. The Attorney General has not given any reason to displace the Sheriff, and has yet to make an explanation of why the Sheriff did not or cannot defend the appeal in the future. Technically, the appeal could go forward without the Attorney General’s participation.

This elaborate procedual debate becomes important only because of the high-stakes Second Amendment issue presented by the Peruta opinion. The importance of Peruta in this constitutional jurisprudence is highlighted by the Supreme Court’s recent denial of certiorari in the Drake case. (Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), cert. den. sub nom. Drake v. Jerejian, No. 12-1150 (05/05/14))

Drake concerns the constitutionality of New Jersey’s Handgun Permit Law. Individuals who desire a permit to carry a handgun in public must apply to the chief police officer in their municipality or to the superintendent of the state police. No permit will be issued without “justifiable need,” defined as ”the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” (N.J. Admin. Code 13:54-2.4(d)(1))

The Third Circuit found that the permit law was presumptively constitutional and applied an intermediate scrutiny test to measure the adjustment of Second Amendment rights. The state had a substantial interest in regulating gun safety and no showing had to be made that the Permit Law was the least intrusive means of implementing public safety.

The constitutional path followed by Peruta presents a direct contrast to that in Drake. Peruta states that the “good cause” requirement, seemingly close to the New Jersey requirement of “justifiable need” was unconstitutional because in the context of California’s ban on open carry and its restrictive concealed carry, the Second Amendment was obviated. Therefore, no balancing of the weapons law against the Second Amendment would justify the California scheme.

The intervention issue and the en banc decision in Peruta may seem minor procedural blips, but they represent a serious “For want of a nail” progression. There is a clear split between the Third and Ninth Circuits on the Second Amendment issue based on these two recent cases and this is a basis for the Supreme Court’s taking of a case. But if the Ninth Circuit allows en banc review and the ensuing opinion en banc reverses and supercedes the original opinion, there will be no split and therefore no basis for Supreme Court review.

Addendum-

Heller v. Dist. of Columbia, No. 1:08-cv-01289-JEB (DDC 05/15/14) [Heller III]

This opinion is a decision of the District Court after the Supreme Court issued its landmark decision in  District of Columbia v. Heller, 554 U.S. 570 (2008) [Heller I].  After the 2008 decision, the District acknowledged Heller I’s Second Amendment protection for handguns in the home for self-defense and enacted a that banned assault weapons and large-capacity magazines and imposed registration requirements for handguns and long guns.   (Firearms Registration Amendment Act of 2008, D.C. Law 17-372; 56 D.C. Reg. 3438 (May 1, 2009), as amended,  D.C. Law 19-170; 59 D.C. Reg. 5691 (May 15, 2012))

The core requirement of the new legislation is a city-wide gun registry.  Each gun owner was required to register each of his firearms with the city government.  To register a firearm, the owner must appear in person at police headquarters with the weapon.  The owner is photographed and fingerprinted, complete a background check, and provide, a current place of employment and addresses of residences for five years prior.  Finally, completion of a firearms training course and payment of a fee is required.

If the firearm is lost, stolen, or destroyed, he must immediately notify the police.  If the weapon is sold or transferred, the owner must notify police within two days.  If the owner changes his name or address, he must notify the police within 30 days.  Each weapon must be re-registered every three years.  Only one firearm may be registered per month, with an exception for new residents.  The owner of a registered firearm must keep the registration certificate with him whenever he is in possession of the weapon and must produce it upon the demand of a law enforcement officer.

Heller challenged the new legislation and the District Court upheld the constitutionality of the law (Heller v. District of Columbia, 698 F. Supp. 2d 179, 181 (D.D.C. 2010)), but on appeal, the D.C. Circuit affirmed the bans on assault weapons and large-capacity magazines and the handgun-registration requirement, but remanded the case to the District Court to permit the parties to develop a more thorough factual record.  (Heller v. District of Columbia, 670 F.3d 1244, 1264 (D.C. Cir. 2011) [Heller II])

Heller III is the District Court’s opinion on summary judgment after further development of the factual record.  The Court granted summary judgment to the District and upheld the District’s firearms regulations.  It found that the District had successfully justified those regulations requirements by presenting substantial evidence that they will achieve important governmental interests and that they are narrowly tailored to such ends.

Heller III begins with the premise that the Firearms Registration Amendment Act had to be unconstitutional as to the plaintiff and that the plaintiff can win only by establishing that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in all of its applications.

The opinion adopts the same constitutional analysis as Drake.  (See United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010))  First, a court determines whether the challenged law impinges upon a right protected by the Second Amendment, given the presumption that a historically longstanding regulation is presumed not to burden conduct within the scope of the Second Amendment.   A plaintiff may rebut this presumption by showing that the regulation does have more than a de minimis effect upon his Second Amendment right.

If, and only if the plaintiff has rebutted this presumption, a court should proceed to  analyzing whether the law passes muster under the appropriate level of constitutional scrutiny.  Because “registration requirements do not severely limit the possession of firearms” and “none of the District’s registration requirements prevent[] an individual from possessing a firearm in his home or elsewhere,” the D.C. Circuit has chosen “the more deferential, intermediate level of scrutiny” was the constitutional test.

Under intermediate scrutiny, the law must relate to a substantial governmental interest.  The law must also be narrowly tailored, i.e. “the [law] promotes a substantial governmental interest that would be achieved less effectively absent the [law] and the means chosen are not substantially broader than necessary to achieve that interest.”  The “fit” between the challenged regulation and the asserted objective need only be reasonable, not perfect.

The District “satisfies intermediate scrutiny if its predictions about the effect of a challenged law are rational and based on substantial evidence – it need not establish with certitude that the law will actually achieve its desired end.”  Therefore,the District must present “any data or other evidence to substantiate its claim that these [gun-registration] requirements can reasonably be expected to promote . . . important governmental interests . . . .”  The District was required to produce “some meaningful evidence, not mere assertions, to justify its predictive judgments” that the Law was efficacious.

The Law had two substantial aims, to protect police officers and to aid in crime control.  The District’s evidence on the former, the testimony of officers, was sufficient, as was empirical data on the latter.

As to the burden on the Second Amendment, long-gun registration was “self-evidently de minimis.”  Gun registration was similar to other common registration or licensing schemes, such as those for voting or for driving a car, “that cannot reasonably be considered onerous.”  Moreover, there was empirical evidence that registration achieved the two aims of the Law.

However, the Court upheld the other procedural requirements for registration such as fingerprinting.  These met the intermediate scrutiny test based on substantial evidence that all these procedures are necessary to ensure that the underlying registration scheme is effective in tracking who is eligible to own a firearm and who owns which weapons.  The same conclusion applies to the firearm training requirement, the renewal requirement,  the one-registration-per-month rule, and all remaining administrative provisions, based on substantial, and mostly expert, testimony.

For those who this this summary is too brief, please reference the 62-page opinion.  Heller III is thorough and the evidentiary record substantial.  Suffice to say, no argument has been missed and, most likely, it will be affirmed on appeal, not the least because the District Court scrupulously followed Heller II’s direction about the governing law.

Heller III is notable for reasons beyond its specific holding that a specific gun registration scheme, with all its administrative requirements, is applicable to all firearms.  It is also a template for any further Second Amendment litigation if intermediate scrutiny is the constitutional standard employed.  By implication, it also predicts that any such future litigation will be won by the government if sufficient preparation is performed by the government before enacting the particular law.

Therefore, Drake and Heller III stands in dramatic contrast to the present Peruta opinion.  Under Peruta, based on infringement by government regulation of the general right to self-defense, the government is nearly always going to lose.  Indeed, imagine the result if the admitted infringements of the Second Amendment in Heller III, only arguably de minimis, are weighed under the Peruta standard.

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