CA:LA Times Misreads Second Amendment Decision of Ninth Circut

Gun Watch ^ | 15 February, 2014 | Dean Weingarten

[marktwain]

The Los Angeles Times ran an article on the decision of the Ninth Circuit in Peruta v County of San Diego, by Maura Dolan and Tony Perry.   While I have come to expect old media reporters to be ignorant about guns, the first sentence in the article makes me wonder about their reading comprehension about judicial matters as well:

"In a significant victory for gun owners, a divided federal appeals court Thursday struck down California rules that permit counties to restrict as they see fit the right to carry a concealed weapon in public."

Uh.. no.  The court did not strike down "California rules that permit counties to restrict as they see fit" .   The court struck down the County of San Diego rules that require the showing of special needs outside of the mainstream in order to obtain a concealed carry permit.  It is a very significant difference.  In the first instance, the court would have ruled against the State of California.  They did not.  In the second instance, they ruled against the choices made in the County of San Diego.  It makes a huge difference in the law, because it defines who is responsible to take action.  In this case it is the counties, not the state.

They also say that the ruling will not go into effect for some time, pending appeals:

California's rules will remain in effect for the foreseeable future, pending appeals.

That may be literally true, as no one can foresee the future. But it appears to be a bit misleading, as there are no indications yet that the decision will be appealed. It does not appear that the State of California has any standing. The decision does not require them to do anything, it is against the County of San Diego and the Sheriff of the County of San Diego. The Chairwoman of the Board of Supervisors of the County of San Diego is quoted as saying that her initial reaction was positive:

Dianne Jacob, chairwoman of the San Diego County Board of Supervisors, said her initial reaction was positive."I have no problem with law-abiding citizens carrying concealed weapons in the name of self-defense," Jacob said.

The Sheriff, William D. Gore, is up for election in 2014, in a relatively conservative county. So who is going to appeal the decision, and why?

It is good that the LA Times is covering these important decisions, but it would be nice if they were a bit more precise.

The cynical part of my mind wonders if the LA Times is trying to muddy the waters in an attempt to justify an appeal of the ruling by the State of California.


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[marktwain]

It seems possible that the 9th Circuit itself could vote to hear the case before a large sub-group. Any lawyers out there aware of precedence for this?

[MeshugeMikey]

I think the author may just be plumb stupid.

Its California. A “journalist” in Lost Angeles! Such people tend to be horribly myopic.

[andyk]

This is the part I don’t get. I understood San Diego to be a conservative area. How is it they have law enforcement who won’t issue permits?

[cdcdawg]

Liberals are only interested in outcomes of court cases. The reasoning (or lack thereof) used to arrive at a decision is of no interest to them. That’s why they have a difficult time reporting or commenting on an outcome they don’t like. Bush v Gore might be the ultimate example. It just doesn’t compute for them, and their emotionally driven attention span is too short to actually work through an adverse ruling.

[marktwain]

“This is the part I don’t get. I understood San Diego to be a conservative area. How is it they have law enforcement who won’t issue permits?”

The power to dish out the largesse of concealed carry permits is seductive. The previous Sheriff used it. The current Sheriff said that he would keep it from being political, so he cemented in place the rules that all had become “traditional”.

I hope that he sees the light and realizes that it is not a good idea to appeal this ruling.

[Misterioso]

Law enforcement agencies don’t run for election.

[Lurker]

Sheriffs do run for re-election.

[DBrow]

Eric Holder recently said that he wanted to ask the SCOTUS for an opinion on what “bear arms” meant in 2A. But the Supremes need a case to work on.

So the 9th went and ruled pro-2A on the issue, when there are two other districts that ruled the other way.

So now Holder has a path to get the issue before SCOTUS. I don’t think he’d dare unless he knew 99.9% certainty what the answer will be.

If I’m right, the decision will not be appealed.

[Misterioso]

I knew someone would say that, as soon as I posted. Rats.

[walkingdead]

Looks like “en banc” is the term. If San Diego County files for it the case will be heard by 11 justices of the 9th circuit. The county has 14 days to appeal “en banc” in which time the ruling will be put on hold till that ruling is cast.

If San Diego County does not appeal in 14 days then the ruling stands and 7 days later the ruling is in effect.

From the end of Peruta Opinion found here:

http://michellawyers.com/wp-content/uploads/2010/11/Peruta-Opinion.pdf

[Cboldt]

-- It seems possible that the 9th Circuit itself could vote to hear the case before a large sub-group. Any lawyers out there aware of precedence for this? --

The action you describe is referred to as "sua sponte" (Latin: "of his, her, its or their own accord."). The circuit court is allowed to rehear the case either as a panel of three, or "en banc" (all of the members of the circuit who choose to participate), on its own accord. But such self-motivated action is rare. Not impossible, not never done, just mighty uncommon.

The loser is allowed to request rehearing, as a matter of right. These requests are usually denied. I'd guess something on the order of 2-4% is reheard, and that usually because the loser has a darn good legal argument, or the court is having second thoughts.

[marktwain]

Thank you. Very valuable information.

[marktwain]

There are already 2 or three cases being appealed to SCOTUS on this issue.

The Court, or Holder, does not need anything further to have them decide to hear a case.

[umgud]

Law enforcement agencies don’t run for election.

County sheriffs do. In Kern County where I live, candidates for sheriffs job actually campaign at our local gun shows. If they aren't pro 2A, they won't get elected. Kern County is the closest thing CA has to shall-issue.

[umgud]

Are you thinking this may not get appealed? And what do you think the chances this ruling will hold if heard on appeal?

[andyk]

I don’t know - usually the sheriff does. Maybe these permits come from the police department instead. I know Denver was one of very few places I’ve lived where the sheriff and the chief if police were both appointed. Never seen that anywhere else.

[andyk]

Hey, thanks for the background. So he tried to keep things nonpolitical by not changing the politically established traditions.

[DBrow]

I find it odd that the 9th would come down on the side of 2A. Do the other cases involve conflicting decisions at that level?

[Cboldt]

-- Are you thinking this may not get appealed? And what do you think the chances this ruling will hold if heard on appeal? --

The ninth circuit is an appellate court, so the trial court ruling was upheld on appeal. I figure the loser (San Diego County) will request rehearing, and the ninth circuit will deny the request.

At that point, the case will be ripe for the loser (San Diego County) to request the case be taken by the US Supreme Court. Filing that is pretty cheap too. I highly doubt SCOTUS would take it up, and if it did, it would be combined with a handful of cases that touch on the right to bear arms (outside of the home).

[umgud]

Thanks