PDA

View Full Version : Richards v. Prieto (CCW)


Pages : [1] 2

fizux
08-21-2013, 12:04 AM
Richards v. Prieto [Yolo County]
(FKA Sykes v. McGinness)
Issue: 2A Right to Bear Arms Outside the Home

Current Status:
As of 3/24/2014: Richards' response due 4/11/2014; possible en banc review.

3/21/2014: Court directs (http://www.hoffmang.com/firearms/richards-v-prieto/Richards-en-banc-Order-reply-2014-03-21.pdf) Richards to file response to petition NLT 4/11/2014.
3/18/2014: Prieto/Yolo petition for rehearing en banc.
3/5/2014: 9CA Panel Opinion (unpublished); (attached pending RECAP)
11/26/2013 - SAF's 28(j) reply letter (http://ia601700.us.archive.org/8/items/gov.uscourts.ca9.11-16255/gov.uscourts.ca9.11-16255.66.0.pdf) (Piszczatoski/Drake v. Filko), and 28(j) letter (http://www.archive.org/download/gov.uscourts.ca9.11-16255/gov.uscourts.ca9.11-16255.67.0.pdf) (U.S. v. Chovan (http://cdn.ca9.uscourts.gov/datastore/opinions/2013/11/18/11-50107.pdf)).
11/13/2013 - Yolo's 28(j) letter (http://www.archive.org/download/gov.uscourts.ca9.11-16255/gov.uscourts.ca9.11-16255.65.0.pdf) (Piszczatoski/Drake v. Filko)
9/16/2013 - SAF's 28(j) letter (People v. Aguilar (http://www.calguns.net/calgunforum/showthread.php?t=822034))
12/6/2012 - Oral Argument (Audio (http://www.ca9.uscourts.gov/media/view.php?pk_id=0000010111))
12/2/2012-5/29/2013 - Various 28j / Supp. Auth. filed


Trial Court: E.D. Cal.
Case No.: 2:09-cv-01235
Docket: http://ia700408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.docket.html

Appellate Court: 9CA
Case No.: 11-16255
Docket: http://ia601700.us.archive.org/8/items/gov.uscourts.ca9.11-16255/gov.uscourts.ca9.11-16255.docket.html

Links:
CGF Wiki for this case: http://wiki.calgunsfoundation.org/Richards_v._Prieto
CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Litigation_Past_and_Present

hardlyworking
08-21-2013, 4:11 AM
Interesting that the same exact 3-judge panel has both this and the Peruta cases. I guess if they can get in line with Heller/MacDonald it could work out well for us!

taperxz
08-21-2013, 8:19 AM
Interesting that the same exact 3-judge panel has both this and the Peruta cases. I guess if they can get in line with Heller/MacDonald it could work out well for us!

UHHHH, maybe because they were heard one after the other on the same day?

Just an FYI:)

stix213
08-21-2013, 1:53 PM
Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?

skyy_capt
08-22-2013, 12:02 AM
Curious also. Was thinking of trying to get my ccw before Christmas.

flyonwall
08-22-2013, 6:11 AM
The have no deadline but average 6 months to a year.

fizux
08-22-2013, 7:08 AM
Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?Part of the delay may be related to another case (Mehl) which had procedural priority at 9CA, so the decision in this case would have had to follow Mehl's holding if it was on point. Mehl came out recently, and thankfully didn't do any damage, so the coast is clear for the Richards/Peruta/Baker panel.

Falstaff
08-22-2013, 11:10 AM
Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?
"The STENCH from the BENCH is making me CLENCH"
-Michael Alan Weiner

press1280
08-24-2013, 4:19 AM
Part of the delay may be related to another case (Mehl) which had procedural priority at 9CA, so the decision in this case would have had to follow Mehl's holding if it was on point. Mehl came out recently, and thankfully didn't do any damage, so the coast is clear for the Richards/Peruta/Baker panel.

Curious if the panel would even start working on their opinion before Mehl was decided? If not then we could be waiting a while, to the point where if this were THE case to go to SCOTUS it wouldn't happen until the 2014-2015 term.

Window_Seat
08-24-2013, 1:29 PM
Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.

Nick Justice
08-26-2013, 12:47 PM
Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.

Unpublished cases generally cannot be cited as binding precedent to support an argument. (Why they choose to avoid publication is a mystery.) As you say, if you want the court to consider an unpublished case, you MUST declare it as unpublished. As such, the case is persuasive, non-binding authority. "Justice O'Scannlain, You might want to consider this case."
The court must follow binding case law and authority, but can dismiss persuasive authority without comment or consideration.

fizux
08-26-2013, 1:39 PM
Why they choose to avoid publication is a mystery.Because the case doesn't add any useful jurisprudence in the eyes of the panel. In Mehl, the case went away for administrative reasons (didn't complete application, etc.) that were unrelated to the 2A issues raised.

stix213
08-26-2013, 4:10 PM
Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.

I thought I read in another thread that they went back and published it

Window_Seat
08-26-2013, 4:40 PM
I thought I read in another thread that they went back and published it

I just looked around the ca9 and ecf.ca9 pages, and nothing about going back to publish it. The only thing that is moving about the case is the petition for rehearing en banc, and that is a pending decision. My hope is that it is not reheard. I don't even know if briefs are due or not at this point.

I'm starting to wonder at this point if Peruta, Richards & Baker are being delayed pending the Mehl en banc reconsideration decision.

Erik.

Window_Seat
08-26-2013, 5:35 PM
Unpublished cases generally cannot be cited as binding precedent to support an argument. (Why they choose to avoid publication is a mystery.) As you say, if you want the court to consider an unpublished case, you MUST declare it as unpublished. As such, the case is persuasive, non-binding authority. "Justice O'Scannlain, You might want to consider this case."
The court must follow binding case law and authority, but can dismiss persuasive authority without comment or consideration.

That about makes sense, and the authority for that might be here in Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004), no?

"In the Ninth Circuit, we begin our inquiry by looking to binding precedent. See Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). If the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end. On the other hand, when ‘‘there are relatively few cases on point, and none of them are binding,’’ we may inquire whether the Ninth Circuit or Supreme Court, at the time the out-of-circuit opinions were rendered, would have reached the same results. See id. at 1515."

But Boyd doesn't tell us that cases which look to unpublished authority must be rendered unpublished, correct?

The Supreme Court talks about their own precedent "ha[ving] direct application in a case, yet appear to rest on reasons rejected in some other line of decisions", and how "the Court of Appeals should follow the case which directly controls," ([I]Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)), but I think that this was an admonition to the lower courts from the Supreme Court that thou shalt not tinker with long standing Supreme Court precedent, even if it has no stare decisis effect before any court, which is probably why the Boyd Court didn't mention Rodriguez for that purpose, no? Anyone care to chime in on that one? I've been kinda interested in that part of case law lately.

Erik.

dave86
08-30-2013, 7:31 AM
Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?

From the 9th Circuit FAQs:
18. How long does it take from the time of argument to the time of decision?

The Court has no time limit, but most cases are decided within 3 months to a year.

thedrickel
08-30-2013, 7:19 PM
From the 9th Circuit FAQs:
18. How long does it take from the time of argument to the time of decision?

The Court has no time limit, but most cases are decided within 3 months to a year.

I don't think 2013 is going to be the year. Hopefully the first half of 2014 will be fruitful, since we are looking at 3 cases together.

wolfwood
08-31-2013, 1:53 PM
I think its partially what Erik said and I think the Ninth Circuit is waiting to see whether Drake is granted cert. If so they will hold off on rendering a decision in the three cases. Its been eight months since arguments I doubt that its going to be much longer if Drake cert is denied. I am merely speculating. There have been a lot of 28j letters filed by both parties in Baker. Every case in the country has been good for us. Most recently the Mass. Supreme Court issued a decision I filed which is just spot on. This is the 28j notice and the attached case.


http://www.scribd.com/doc/160149338/Filed-Simkin-Notice

As to citing unpublished sources. I am horrible at citations but the way you tell the court a decision is unpublished is simply by how you do the citation
this is just a example Holder, 342 F. App’x 907, 908-09 (4th Cir. 2009)
that is unpublished
this is published Tucson Woman’s Clinic v. Eden, 379
F.3d 531, 544 (9th Cir. 2004)

You really should not cite to unpublished cases unless you literally have nothing else to cite to. They do not have a lot of value especially if they are from another jurisdiction. The reason cases are not published is the Court thinks the case was poorly done and does not want it as precedent or the case is not very important.

Paladin
09-01-2013, 7:23 AM
I think its partially what Erik said and I think the Ninth Circuit is waiting to see whether Drake is granted cert. If so they will hold off on rendering a decision in the three cases. Its been eight months since arguments I doubt that its going to be much longer if Drake cert is denied. I am merely speculating.If SCOTUS grants cert. in Drake, would the 9th inform the parties that they're holding off in Peruta-Richards-Baker pending a decision in Drake or do they just hold off w/o informing anyone?

Either way, could SCOTUS tell the 9th not to hold off, to come to a decision in Peruta-Richards-Baker because they want the benefit of the opinion of the 9th before deciding Drake? That's what I'm hoping for.

Could Alan word his brief in such a way that he raises this issue (basically suggest to SCOTUS that they "ask" the 9th to come to a conclusion ASAP for the benefit of SCOTUS)?

wolfwood
09-01-2013, 3:40 PM
If SCOTUS grants cert. in Drake, would the 9th inform the parties that they're holding off in Peruta-Richards-Baker pending a decision in Drake or do they just hold off w/o informing anyone?

Either way, could SCOTUS tell the 9th not to hold off, to come to a decision in Peruta-Richards-Baker because they want the benefit of the opinion of the 9th before deciding Drake? That's what I'm hoping for.

Could Alan word his brief in such a way that he raises this issue (basically suggest to SCOTUS that they "ask" the 9th to come to a conclusion ASAP for the benefit of SCOTUS)?

I believe that there is a very strong chance that the panel would issue a stay if Drake were taken. It is up to them.

My understanding is SCOTUS can not order that and I don't know of a situation where they've even asked a Circuit panel to render a opinion before it was ready.

Paladin
09-01-2013, 5:33 PM
I believe that there is a very strong chance that the panel would issue a stay if Drake were taken. It is up to them.

My understanding is SCOTUS can not order that and I don't know of a situation where they've even asked a Circuit panel to render a opinion before it was ready.
Not before it is ready, but rather request/suggest/instruct them not to put it on ice until SCOTUS decides Drake.

IIRC, all lower fed cts are creations of SCOTUS, just the way that all local gov'ts are creations of a state.

Maybe they could even say we'd like that opinion by 2014 Jan 01. That way both sides could deal w/any new arguments the 9th raised, if any, in supplemental briefs and in oral arguments.

I mean, its not like the judges on the 9th never had a due date for an assignment before.... It's just telling them, this is an important issue that we, SCOTUS, are going to deal w/so we'd like your input in a timely manner, esp since this is a FUNDAMENTAL and ENUMERATED right we're dealing with. Make writing an opinion in this case a high, or even your highest, priority.

Has SCOTUS has faced this situation before? If so, any Con. law experts here know what happened then?

Al Norris
09-01-2013, 5:50 PM
Article III Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

So while the Supreme Court has the final judicial say, the lower courts are in fact, creatures of the legislature.

Paladin
09-01-2013, 6:30 PM
Article III Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

So while the Supreme Court has the final judicial say, the lower courts are in fact, creatures of the legislature.Ah, thx. Haven't gone over Art. III in quite awhile. :o

Do you know if SCOTUS can request the 9th to release their opinion in time for SCOTUS to review it this term in re. Woollard?

Paladin
09-01-2013, 11:03 PM
If SCOTUS grants cert. in Drake, would the 9th inform the parties that they're holding off in Peruta-Richards-Baker pending a decision in Drake or do they just hold off w/o informing anyone?

Either way, could SCOTUS tell the 9th not to hold off, to come to a decision in Peruta-Richards-Baker because they want the benefit of the opinion of the 9th before deciding Drake? That's what I'm hoping for.

Could Alan word his brief in such a way that he raises this issue (basically suggest to SCOTUS that they "ask" the 9th to come to a conclusion ASAP for the benefit of SCOTUS)?Um, I see that you were talking about Drake, so I just started talking about Drake even though Drake is pending a decision re. going en banc.

I meant to talk about Woollard which Gura has already requested cert. for.

flyonwall
09-02-2013, 1:24 PM
Neither Woollard or Drake would have no impact on what the 9th does, and more likely the reverse. Scotus will deny both and wait for the 9th to complete their work to get a comprehensive opinion addressing all of the Circuits. Circuit Courts are independent courts' of final determination. There is no appellate right beyond their decision other than a request for cert.

Drivedabizness
09-03-2013, 11:30 AM
Article III Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

So while the Supreme Court has the final judicial say, the lower courts are in fact, creatures of the legislature.

Congress authorizes ordains and establishes inferior Courts. They can abolish and re-institute if/as they want (hasn't happened in 200 years).

press1280
09-03-2013, 1:11 PM
Um, I see that you were talking about Drake, so I just started talking about Drake even though Drake is pending a decision re. going en banc.
I meant to talk about Woollard which Gura has already requested cert. for.

Already denied by a vote of 8-4. Clock is ticking on a cert petition.

Paladin
09-03-2013, 8:29 PM
Already denied by a vote of 8-4. Clock is ticking on a cert petition.

You're right! On 2013 Aug 27 the request was denied. They've got 90 days from then to ask for cert.

Somehow, I don't think they'll wait until the last minute to decide whether to ask for cert or not.... ;)

press1280
09-04-2013, 2:18 AM
Agreed. If they take the whole 90 days, add in the guaranteed "I need more time!", and you may find yourself waiting until NEXT term (2014-2015).
They can probably wait until SCOTUS decides on Woollard and stay in this term.

Cowboy5150
10-04-2013, 7:50 AM
Still in a holding pattern?

Sent from my SCH-I605 using Tapatalk 4

fizux
11-12-2013, 6:01 AM
Still in a holding pattern?
Yarp.

Window_Seat
11-14-2013, 10:21 PM
FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert. :p

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here (http://www.calguns.net/calgunforum/showthread.php?t=847661). :cool:

Erik.

Funtimes
11-15-2013, 12:27 AM
FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert. :p

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here (http://www.calguns.net/calgunforum/showthread.php?t=847661). :cool:

Erik.

Who signs a legal document "very truly yours"... are they sleeping together or what?

press1280
11-15-2013, 5:34 AM
FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert. :p

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here (http://www.calguns.net/calgunforum/showthread.php?t=847661). :cool:

Erik.

SCOTUS has said that denials of cert are just that; it is not an endorsement of the judgement below. Yolo is obviously trying to give CA9 the impression that SCOTUS rubber stamped Kachalsky and Woolard.

wolfwood
11-15-2013, 6:24 AM
Who signs a legal document "very truly yours"... are they sleeping together or what?

Nearly all attorneys do when engaged in official correspondence with people they are not familiar with. That includes your attorneys.
I would note that they should have attached the decision and there is not much point in filing one since the government's attorney in Baker already filed a 28j letter regarding Drake.

Funtimes
11-15-2013, 9:21 AM
Nearly all attorneys do when engaged in official correspondence with people they are not familiar with. That includes your attorneys.
I would note that they should have attached the decision and there is not much point in filing one since the government's attorney in Baker already filed a 28j letter regarding Drake.


Very truly yours belongs in a love letter! You lose cool points if you do that :P. Clearly, no man card exists if you are signing letters like this!

wolfwood
11-15-2013, 12:13 PM
fair enough brother

Window_Seat
11-16-2013, 10:05 PM
My elementary school teachers would address their signatures with "very truly yours" when there was a letter to my parents, which would have resulted in certain punishment. :D

Erik.

sarabellum
11-20-2013, 1:59 PM
Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.

Citing to unpublished decisions is sanctionable conduct, as attorneys have a duty of candor to the tribunal to only put forward meritorious legal theories:

In Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, 271 Cal.Rptr. 513, the court found that a lawyer's conduct in failing to address adverse controlling authority and instead persisting in citing to an unpublished case, despite knowledge of these defects, warranted sanctions. Nevertheless, the court could not (and did not) point to the CRPC in support of its order to impose sanctions; rather, the Court first attempted to find that the lawyer had violated a local court rule governing the form of briefs. The court then "rejected these options because the violations in issue here involve more than the mere form of the brief." Id. at 886. The Court proceeded to order "a more severe sanction than those set forth in California Rules of Court, rule 18," though its struggle to find authority for such sanctions is apparent in the decision. Id.

Best regards.

M. D. Van Norman
11-20-2013, 2:53 PM
SCOTUS has said that denials of cert are just that; it is not an endorsement of the judgement below.

A notion that doesn’t fool anyone.

sarabellum
11-20-2013, 3:31 PM
A notion that doesn’t fool anyone.

A denial of certiorari is an endorsement. As as result cases are cited as such, e.g. Woxberg v. United States, 329 F.2d 284 (9th Cir.), cert. denied, 379 U.S. 823 (1964)

wolfwood
11-20-2013, 4:34 PM
Citing to unpublished decisions is sanctionable conduct, as attorneys have a duty of candor to the tribunal to only put forward meritorious legal theories:

In Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, 271 Cal.Rptr. 513, the court found that a lawyer's conduct in failing to address adverse controlling authority and instead persisting in citing to an unpublished case, despite knowledge of these defects, warranted sanctions. Nevertheless, the court could not (and did not) point to the CRPC in support of its order to impose sanctions; rather, the Court first attempted to find that the lawyer had violated a local court rule governing the form of briefs. The court then "rejected these options because the violations in issue here involve more than the mere form of the brief." Id. at 886. The Court proceeded to order "a more severe sanction than those set forth in California Rules of Court, rule 18," though its struggle to find authority for such sanctions is apparent in the decision. Id.

Best regards.

That is not true in federal courts.

FRAP 32.1. Citing Judicial Dispositions
(a)

Citation Permitted.
A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been;
(i)

designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and
(ii)

issued on or after January 1, 2007.

sarabellum
11-22-2013, 11:49 AM
That is not true in federal courts.

FRAP 32.1. Citing Judicial Dispositions
(a)

Citation Permitted.
A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been;
(i)

designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and
(ii)

issued on or after January 1, 2007.

There is no federal law controlling the ethical conduct of attorneys. State law controls the ethical conduct of attorneys. See for example, United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993) (dismissing criminal charges because of prosecutor's ex parte communications with defendant in violation of California ethics rules). As in the example of Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, citation to non-precedential cases, while ignoring controlling authority is breach of the duty of candor to the tribunal. At the appellate level, FRAP 32.1 allows counsel to cite to an unpublished decision to urge a deviation from published authority, but does not and cannot attempt to alter the duty of candor, controlled by state law.

CRPC Rule 3-200 provides, "A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is...(A) To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause... or (B) To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law."

Best regards.

FABIO GETS GOOSED!!!
11-22-2013, 12:06 PM
You know, it helps sometimes to go to the source, i.e., Cal. Rules of Court, rule 8.115(a) which defines "unpublished opinions":

Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

Mehl is not "an opinion of a California Court of Appeal or superior court appellate division" therefore...(you can finish the sentence).

sarabellum
11-22-2013, 6:11 PM
You know, it helps sometimes to go to the source, i.e., Cal. Rules of Court, rule 8.115(a) which defines "unpublished opinions":



Mehl is not "an opinion of a California Court of Appeal or superior court appellate division" therefore...(you can finish the sentence).

The Cal. Rules of Court, rule 8.115(a) is not a definition of an unpublished decision. The CRPC completely prohibit citation to unpublished decisions for any purpose other than to urge an expansion or deviation from established precedent.

FABIO GETS GOOSED!!!
11-22-2013, 9:58 PM
The Cal. Rules of Court, rule 8.115(a) is not a definition of an unpublished decision. The CRPC completely prohibit citation to unpublished decisions for any purpose other than to urge an expansion or deviation from established precedent.

8.1115(a) (which I quoted) states the rule against citing unpublished opinions and these do not include unpublished federal court opinions. Where is the California rule against citing unpublished federal court opinions? Answer: nowhere.

Citing unpublished federal opinions does not violate our rules. (Cal. Rules of Court, rule 8.1115.)

Do you disagree with the California Supreme Court too?

wolfwood
11-22-2013, 10:52 PM
The Cal. Rules of Court, rule 8.115(a) is not a definition of an unpublished decision. The CRPC completely prohibit citation to unpublished decisions for any purpose other than to urge an expansion or deviation from established precedent.

I spent my first year in ethics with Hawaii ODC. What that case you cited to states is an attorney should not knowingly mislead the court via citing unpublished opinions which run contrary to case law with precedental value he is or should be aware of. I don't spend a lot of time in state court so I am not very familiar with California rules but I can assure you the Bar is not going after you solely for citing to a unpublished federal case.

OleCuss
11-23-2013, 2:23 PM
IIRC, Gorski cited McDonald before the opinion was handed down. It was on the order of, "Hey, we're going to win McDonald and it will mean this and that means that my case wins as well."

To my knowledge he suffered no penalty for doing this. So to me it appears you can even "cite" an undecided case.

Might not be precisely what you all are discussing, but maybe it adds a little.

jdoane9724
11-23-2013, 5:22 PM
in case anyone's curious....

2013 California Rules of Court

Rule 8.1115. Citation of opinions

(a) Unpublished opinion

Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

(b) Exceptions

An unpublished opinion may be cited or relied on:

(1)When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or

(2)When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.

(Subd (b) amended effective January 1, 2007.)

<snipped for brevity>

http://www.courts.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_1115

sarabellum
11-23-2013, 8:59 PM
8.1115(a) (which I quoted) states the rule against citing unpublished opinions and these do not include unpublished federal court opinions. Where is the California rule against citing unpublished federal court opinions? Answer: nowhere.

Do you disagree with the California Supreme Court too?

There is no distinction between a federal or state case with regard to a lawyer's duty of candor. You have not cited any case or California Rule of Professional Conduct absolving an attorney of the duty of candor.

CRPC Rule 3-200 provides, "A member shall not.. present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law."

The sole avenue for addressing an unpublished decision is to cite to a published, controlling precedent and to make a persuasive argument urging a deviation from the controlling rule to that found in an unpublished decision. Period.

Any conduct on the part of any attorney that appears misleading to the tribunal, such as citing to an unpublished decision for any purpose other than to urge a deviation from the cited controlling precedent, violates the duty of candor:
http://apps.calbar.ca.gov/mcleselfstudy/mcle_home.aspx?testID=48

FABIO GETS GOOSED!!!
11-24-2013, 5:11 AM
You are all over the place with your mis-reading of the Cal. rules of court and backpedaling lol.

Your initial claim was that citing unpublished opinions is sanctionable and when it was pointed out to you that the Cal. rule of court that prohibits citation of unpublished opinions does not apply to unpublished federal court opinions, then your argument changed to "duty of candor" i.e. ignoring controlling authority. But who in this thread was ever talking about citing unpublished opinions and ignoring controlling authority? Nobody except you. You can't cite published opinions (e.g. published opinions from other jurisdictions, published opinions that have been overruled) and ignore controlling authority for that matter. This statement of yours:

The sole avenue for addressing an unpublished decision is to cite to a published, controlling precedent and to make a persuasive argument urging a deviation from the controlling rule to that found in an unpublished decision. Period.

is incorrect as it applies to unpublished California court of appeal or Superior court appellate division opinions (which may not be cited at all except for the purposes stated at 8.1115(b)), and it is also incorrect as to unpublished federal court opinions. What rule prevents citing an unpublished federal court opinion when there is no published, controlling precedent? What rule prevents citing an unpublished federal court opinion when there is published, controlling precedent that is not directly adverse?

So you can cite unpublished federal court opinions pretty much anytime you like -- even when there is published, controlling precedent that is directly adverse -- and so long as you are not violating your "duty of candor" or some other ethical rule there is no basis whatsoever for sanctions. If you had started with "violating the duty of candor is sanctionable" no one would have disagreed with you but it would have been as germane to the discussion as the violation of any other random ethical rule that nobody was talking about.

Apocalypsenerd
11-24-2013, 7:54 AM
So I think FGG just confirmed my suspicions.

Jongage
12-02-2013, 9:18 PM
Bump to keep alive. Can this be made a sticky, hopefully the decision will come this month, as December being one year.

rivraton
01-07-2014, 10:20 AM
Looks like they have "pocketed" this one...Can't legitimately rule against us so no ruling at all...

Paladin
01-07-2014, 11:34 AM
Looks like they have "pocketed" this one...Can't legitimately rule against us so no ruling at all...IIRC, folks who keep track of how long the various CAs take w/these sorts of cases say that we should not worry that CA9 is trying to pull a Palmer on us until after 20 months have passed w/o a decision. IOW, if by 2014 Oct 01 there hasn't been an opinion published, start grumbling.

fwiw I started a thread where I edit & update the OP re. the status of federal carry cases at:
http://www.calguns.net/calgunforum/showthread.php?t=812950

M. D. Van Norman
01-08-2014, 8:15 AM
We gonna get Palmerized. :p

Funtimes
01-15-2014, 9:23 PM
We gonna get Palmerized. :p

That would be really screwed up for a preliminary injunction lol.

fizux
01-16-2014, 6:41 AM
I was talking to Alan Gottlieb at the SHOT show yesterday. He told me that we are real close, and to expect a decision in two weeks.

Paladin
01-16-2014, 6:47 AM
I was talking to Alan Gottlieb at the SHOT show yesterday. He told me that we are real close, and to expect a decision in two weeks.
Did you/he pick the infamous CGN/CGF :twoweeks: just to yank our chain or are you serious?

If serious, and if we get a WIN before the end of the month, that would be AWESOME!!!

ETA: Does he expect a win or loss???

fizux
01-16-2014, 7:08 AM
Did you/he pick the infamous CGN/CGF :twoweeks: just to troll us or are you serious?

If serious, and if we get a WIN before the end of the month, that would be AWESOME!!!
He did.

Mostly to troll... but also to rub in the fact that I'm here.
Now, I understand why it is the best gun show of the year -- no @#$!ing zappers.

Actually, he seemed to think that Drake was the one to watch (other than the fact that it happens to be next).

Paladin
01-16-2014, 7:33 AM
He did.

Mostly to troll... Whew! For about 45 minutes there, I was actually exuberant....

M. D. Van Norman
01-16-2014, 7:46 AM
We’re in the 43rd month of Gene’s 36-month worst-case scenario. :p

hoffmang
01-16-2014, 10:41 PM
We’re in the 43rd month of Gene’s 36-month worst-case scenario. :p

I did expect we'd have a grant by now, but I also expect Palmer to have left District court 18 months ago (and it should have.)

We have a small chance of a 2014 resolution so it's looking like June 2015.

Drake has a decent chance of being taken but it's not required to ultimately prevail. Because, no matter what happens in Richards at the three judge panel, we're going to get fireworks en banc - and that tends to invite SCOTUS review also.

-Gene

Paladin
01-17-2014, 6:12 AM
no matter what happens in Richards at the three judge panel, we're going to get fireworks en banc - and that tends to invite SCOTUS review also.

-GeneIIRC, folks who claim to watch such things said the 3 judge panels in CA9 rarely take >22 months for a decision, so that means a decision BEFORE 2014 Oct 01.

Q: Does anyone know how long a CA9 en banc, with this kind of controversial issue, will take? (skip the lame "2 weeks" and derivatives -- that got old re. Carry cases 2 years ago....)

press1280
01-17-2014, 8:41 AM
If it goes en banc it could delay things another year.
As far as the 3 judge panel I think is upper end would 24 months or so. In this case I'm not sure if the Mehl case potentially slowed things down.

M. D. Van Norman
01-17-2014, 3:12 PM
Once again, there was very little reason for the high court to not take up Kachalsky and even less to decline Woollard. It’s hard to imagine what in Drake or Richards would compel the court’s attention at this point. I’m sorry, Gene.

The U.S. Supreme Court has chosen dereliction in this matter.

hoffmang
01-17-2014, 7:17 PM
Once again, there was very little reason for the high court to not take up Kachalsky and even less to decline Woollard. It’s hard to imagine what in Drake or Richards would compel the court’s attention at this point. I’m sorry, Gene.

The U.S. Supreme Court has chosen dereliction in this matter.

It's common for them to let things percolate in the district courts. It's also arguable that there hasn't been a split until Drake.

-Gene

CG of MP
01-17-2014, 7:35 PM
"It's also arguable that there hasn't been a split until Drake."

I just can't see HOW?!?!!?!?!
Seems to me there are more splits about Heller & McD than in a bad hair commercial.

hoffmang
01-17-2014, 8:44 PM
"It's also arguable that there hasn't been a split until Drake."

Moore is distinguishable on the entire ban versus e.g. Woolard and it was not until Drake that there is a direct split on the underlying reasoning between e.g. Drake and Moore.

Have you read all three of them?

-Gene

fizux
01-17-2014, 9:58 PM
Once again, there was very little reason for the high court to not take up Kachalsky and even less to decline Woollard. It’s hard to imagine what in Drake or Richards would compel the court’s attention at this point. I’m sorry, Gene.

The U.S. Supreme Court has chosen dereliction in this matter.
They also like to see what different circuits have to say. Of the "may/no issue" states left, take a look at the populations by circuit:

1CA (Mass., PR, RI): 11,359,421 (Hightower)
2CA (NY, CT): 23,247,207 (Kachalsky)
3CA (NJ, DE): 9,825,088 (Drake)
4CA (MD): 5,928,814 (Woolard)
5CA: 0 (all shall issue states)
6CA: 0 (all shall issue states)
7CA: 0 (all shall issue states; Moore)
8CA: 0 (all shall issue states)
9CA (CA, HI, ignoring other islands): 39,736,575 (Richards/Peruta)
10CA: 0 (all shall issue states)
11CA: 0 (all shall issue states)
DCCA: 646,449 (Bueller Palmer)

Population source is Wikipedia (http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population) . Note that in the interest of avoiding all snipers, I am including the populations of CT, DE, and RI, which many consider to be virtually shall issue in practice. Additionally, since being made famous in the movie Wayne's World, DE honors 18 other states including AZ and UT.

Do you notice which circuit has the largest population affected by this infringement of their civil liberties? Do you think SCOTUS will lay the pre-smack down on the 9th before the 9th has a chance to even come up with an opinion that would affect almost 50% of the may-issue population?

As much as I'd rather they took an earlier case, I would not be surprised if SCOTUS is waiting for the 9th.

press1280
01-18-2014, 5:10 AM
One thing to note is Hightower isn't really persuasive authority for either side due to the particular issues with the plaintiff. A new case http://www.comm2a.org/index.php/55-projects/102-davis with a clean plaintiff is in motion, but is waiting for an opinion in district court.

What Gene points out I agree with, just look at the US v. Castleman case. That's a DEEP split with almost every circuit weighing in on the issue. We're not even close to a split like that. While Drake is framed as part of 2 different splits(inside/outside the home and intermediate scrutiny requiring some sort of evidence/studies from the government), it's possible they won't take any case if/until a "need" statute is finally struck down.

Paladin
01-18-2014, 8:08 AM
it was not until Drake that there is a direct split on the underlying reasoning between e.g. Drake and Moore.
...

-Gene

They also like to see what different circuits have to say....

Do you notice which circuit has the largest population affected by this infringement of their civil liberties? Do you think SCOTUS will lay the pre-smack down on the 9th before the 9th has a chance to even come up with an opinion that would affect almost 50% of the may-issue population?

As much as I'd rather they took an earlier case, I would not be surprised if SCOTUS is waiting for the 9th.

Both of these give me optimism for the next 1 1/2 years.

But, if SCOTUS does NOT take a Carry case this term or next (i.e., before 2015 July 01), I'll be seriously concerned about whether referring to ourselves as "serfs" is hyperbole or not....

fizux
01-18-2014, 9:29 PM
But, if SCOTUS does NOT take a Carry case this term or next (i.e., before 2015 July 01), I'll be seriously concerned about whether referring to ourselves as "serfs" is hyperbole or not....Cleetis, y'all inshure them thare Ghost Guns is imprintificated b'far then.

mmayer707
02-20-2014, 8:28 AM
We could get a decision on this any day now I assume. I believe this and the Peruta case were filed with the 9th at around the same time.

ddestruel
02-20-2014, 2:01 PM
We could get a decision on this any day now I assume. I believe this and the Peruta case were filed with the 9th at around the same time.

could the 9th hold back issuing the ruling until after they see if peruta goes en banc?


if they issue the ruling once they think peruta isn’t going en banc then doesn’t that create a check mate scenario? precedence of peruta creates a challenging situation for any appeal of the richards? I’m not sure about GMC on richards..... what will happen there, it’d almost seem like the CA statute will withstand a lot of challenges and still be legal so long as law abiding citizens have an avenue for self defense. nothing else matters maybe this was the problem in kachalsky, woo lard etc we attacked the law and not the as applied and forgot that heller told us states were entitled to some ability to regulate time place and manner..... wow this ruling opens doors the game of chess these judges play on this seems interesting the timing of the next two releases and what they say may tell us a lot. will they deer to one ruining or go to extremes on each ruling?

mmayer707
02-20-2014, 4:07 PM
could the 9th hold back issuing the ruling until after they see if peruta goes en banc

I assume they could, but i am hoping it is more of a docket number thing and the fact that they spread cases out fairly far and wide. Who knows? No, really who knows? :)

Kharn
02-20-2014, 5:27 PM
IIRC en banc on Peruta would cause Baker and Richards to be held if not already released, so I'd expect O'Scannlain to release one (or both) closer to the end of the en banc voting window. That time is also very close to when Drake will be up for cert.

mmayer707
02-20-2014, 6:50 PM
It is almost like the perfect storm in our favor. The anti's must be ****ting themselves.

Librarian
02-21-2014, 2:45 PM
Stick to the case, please.

Also note, San Diego will not appeal Peruta, http://www.calguns.net/calgunforum/showthread.php?t=897109

wireless
02-24-2014, 8:22 PM
Richards challenges the morality clause, is that correct? Should we expect to hear the results for this soon?

fizux
02-24-2014, 9:01 PM
Richards challenges the morality clause, is that correct? Should we expect to hear the results for this soon?
I assume Richards will be published shortly. Since it challenges the state law (and noticed the CAAG as such), the 9CA panel could do more to the eviscerate the unconstitutional California state statutory scheme (as alluded in the Peruta dissent).

OTOH, they could just hold Richards "Reversed and Remanded for the reasons set forth in Peruta."

They have the opportunity to address GMC, but Richards is primarily a GC challenge.

yellowfin
02-24-2014, 9:20 PM
Here's a question: why are decisions that are reversed so often remanded? Why not just finish the case right then and there with appropriate and sufficient action?

JoshuaS
02-24-2014, 9:34 PM
Here's a question: why are decisions that are reversed so often remanded? Why not just finish the case right then and there with appropriate and sufficient action?

When a procedural error, including using the wrong standard or not admitting evidence that should be admitted, is made, what the higher court is doing is correcting the error. It then remands the decision so that the lower court can correct its error. In a way their judgment is on the action of the lower court, rather than just the case itself

wireless
02-24-2014, 9:37 PM
Hopefully they do address good moral character.

Chewy65
02-24-2014, 11:32 PM
Hopefully they do address good moral character.

GMC is indeed addressed by Richards. See the first sentence of plaintiff's Statement of the Case in his opening brief at pp. 2-3.

When individuals enjoy a constitutional “right” to engage in some activity, a license to engage in that activity cannot be conditioned on the government’s determination of their “good moral character” or good cause” to exercise that right. Defendants must be enjoined from
imposing this classic form of unconstitutional prior restraint against the fundamental right to keep and bear arms. Where fundamental
rights are concerned, a system of prior restraint cannot employ unbridled discretion.

Than see pages 43-44.

Even less defensible [than the good character requirement] is the requirement of “good moral character.” The Supreme Court long ago rejected the constitutionality of an ordinance demanding “good character” as a prerequisite for a canvassing license. Schneider v. New Jersey (Town of Irvington), 308 U.S. 147, 158 (1939). Absent further definition, courts typically reject all forms of “moral character” standards for the licensing of fundamental rights. See [omitted cites.

Also see Page 32 of Plaintiff's Reply brief. Yolo County doesn't even directly challenge plaintiff's argument on the gmc requirement. I was tired when looking at it and may have missed something, but I think the county's attorneys stepped in it.

mkasda
02-26-2014, 12:27 AM
Is it time to apply in Yolo County yet, or should we wait for a decision in Richards?

dantodd
02-26-2014, 12:31 PM
Is it time to apply in Yolo County yet, or should we wait for a decision in Richards?

Yolo county is bound by the Peruta decision. The only reason to wait for the resolution of Richards would be if you are concerned about something in your background that the sheriff could use to deny you based on his determination of your "moral character."

IVC
02-26-2014, 12:34 PM
Yolo county is bound by the Peruta decision.

Replace with "will be bound" and it's correct. We are still officially waiting for the ruling to become effective.

fizux
02-27-2014, 9:22 AM
Replace with "will be bound" and it's correct. We are still officially waiting for the ruling to become effective.
Peruta became good law the day it was published. The only "effective" delay is the entry of judgment against SDSO.

Yolo (and any other county) is free to violate the holding in Peruta, but should have a checkbook ready for the incoming 1983 claims.

Funtimes
02-27-2014, 10:37 AM
I assume Richards will be published shortly. Since it challenges the state law (and noticed the CAAG as such), the 9CA panel could do more to the eviscerate the unconstitutional California state statutory scheme (as alluded in the Peruta dissent).

OTOH, they could just hold Richards "Reversed and Remanded for the reasons set forth in Peruta."

They have the opportunity to address GMC, but Richards is primarily a GC challenge.

Do they just reverse and remand injunction requests too?

mkasda
03-03-2014, 7:04 PM
Well, went to drop off my completed CCW application today.
They refused to accept it without 3 letter of reference and proof of residency. Looks like nothing has changed with the 9ths decision.

fizux
03-03-2014, 7:12 PM
Well, went to drop off my completed CCW application today.
They refused to accept it without 3 letter of reference and proof of residency. Looks like nothing has changed with the 9ths decision.
Which county?
If you are dealing with Yolo, you might have better luck after Richards.

I'm not as worried about proof of res, but 3x references are not a DOJ uniform application requirement.

teetsjones
03-03-2014, 7:21 PM
Which county?
If you are dealing with Yolo, you might have better luck after Richards.

I'm not as worried about proof of res, but 3x references are not a DOJ uniform application requirement.

They will rationalize the request using the Good moral character clause. The California law is still to ambiguous.

IVC
03-03-2014, 7:56 PM
They will rationalize the request using the Good moral character clause. The California law is still to ambiguous.

Richards *IS* about the good moral character.

fizux
03-03-2014, 8:18 PM
They will rationalize the request using the Good moral character clause. The California law is still to ambiguous.
By extension of the same logic, they can rationalize anything. How about requiring ...
1. disclosure of sexual orientation and political positions?
2. Polygraph?
3. Waiver of any/all 4A protections?

wireless
03-03-2014, 8:52 PM
I believe CA penal code states they cannot give lie detectors for a LTC. I'm 95% sure I read that. On CGF's website they have a section about legal documents of LTC.

otteray
03-03-2014, 9:18 PM
Santa Cruz County S.O. policy manual disagrees with that. It says that in the event of discrepancies, a polygraph may be given at no cost to the applicant.

wireless
03-03-2014, 9:41 PM
hmm I guess you're right.

press1280
03-04-2014, 1:51 PM
Richards *IS* about the good moral character.

I'm curious how Richards would have standing when it comes to GMC, he wasn't denied because of that, correct?

wireless
03-05-2014, 9:11 AM
Reversed and remanded.

taperxz
03-05-2014, 9:16 AM
I wonder why Good Moral Character was not brought up in the opinion.

It seems that the judge views both of the cases as if you are not a prohibited person, you have GMC and self defense is a good enough cause of applying.

End of story really.

ronlglock
03-05-2014, 9:19 AM
Holy cow - anti-gunners are probably sh*** their pants just about now.

El Toro
03-05-2014, 9:22 AM
I wonder why Good Moral Character was not brought up in the opinion.

It seems that the judge views both of the cases as if you are not a prohibited person, you have GMC and self defense is a good enough cause of applying.

End of story really.

I thought the same thing....
http://i0.kym-cdn.com/photos/images/original/000/001/384/Atrapitis.gif

09rubicon
03-05-2014, 9:23 AM
Anybody want to go to the Brady offices and dance on the sidewalks out front??

HPBrowningMK3
03-05-2014, 9:24 AM
I can see KH having a hissy fit right about now!

OleCuss
03-05-2014, 9:32 AM
I can see KH having a hissy fit right about now!

There is also a small danger of kcbrown having his worldview changed. . .

I wonder if this could increase the probability of cert for Drake? I don't claim to have an answer, it is a question.

Edit: What are the implications when the opinion is "Not For Publication"? Does that mean that it is neither precedential nor influential - or something else?

taperxz
03-05-2014, 9:33 AM
There is also a small danger of kcbrown having his worldview changed. . .

I wonder if this could increase the probability of cert for Drake? I don't claim to have an answer, it is a question.

My opinion would be absolutely yes.

Southwest Chuck
03-05-2014, 9:39 AM
Excellent news! Now waiting for the 3rd shoe to drop ..... Baker :thumbsup:

Rumline
03-05-2014, 9:46 AM
I wonder why Good Moral Character was not brought up in the opinion.
Yeah, that was my thought as well. Does the fact that they didn't mention GMC, and cited a decision that does not deal with GMC, create wiggle room for counties to still ignore it? Like if they tried to be like Maryland "If the court meant to invalidate good moral character requirements, they will need to say so more plainly."

OleCuss
03-05-2014, 9:47 AM
Another stupid question?

Does this suggest a large reduction in the probability of an en banc reversal of the Peruta opinion?

The reason why I ask is that it looks like the Richards order more or less says, "The District Court was wrong - read our Peruta opinion of you don't believe that".

So now if the en banc is granted and the opinion is reversed, Richards as a sort of dependent case would seem to get a little messy since the order reversing and remanding has already been done. There may be a procedure to handle this, but it should still be just a little messy.

The second point would be that I'm betting the panel which issued the Richards order has already read the petitions to be intervenors in the Peruta case. It seems logical to me (as an outsider/non-lawyer) that if they found the petitions to intervene even a little persuasive that they would have delayed the Richards order until after the 9th Circuit Peruta business was concluded.

Net effect is that in my non-expert opinion the Richards order is a big suggestion that Peruta will not go en banc.

I'd be interested in hearing if my logic is flawed (or just how flawed it might be).

taperxz
03-05-2014, 9:50 AM
Another stupid question?

Does this suggest a large reduction in the probability of an en banc reversal of the Peruta opinion?

The reason why I ask is that it looks like the Richards order more or less says, "The District Court was wrong - read our Peruta opinion of you don't believe that".

So now if the en banc is granted and the opinion is reversed, Richards as a sort of dependent case would seem to get a little messy since the order reversing and remanding has already been done. There may be a procedure to handle this, but it should still be just a little messy.

The second point would be that I'm betting the panel which issued the Richards order has already read the petitions to be intervenors in the Peruta case. It seems logical to me (as an outsider/non-lawyer) that if they found the petitions to intervene even a little persuasive that they would have delayed the Richards order until after the 9th Circuit Peruta business was concluded.

Net effect is that in my non-expert opinion the Richards order is a big suggestion that Peruta will not go en banc.

I'd be interested in hearing if my logic is flawed (or just how flawed it might be).

I see no reason for this judge to release Richards in light of a Peruta en banc. He could have held it in his pocket and not released it.

Kamala loses and no 9th circuit judge will intervene either.JMHO

ryan_j
03-05-2014, 9:54 AM
I wonder if this could increase the probability of cert for Drake? I don't claim to have an answer, it is a question.


It's Ash Wednesday. I'm going to church tonight... I'm praying for this. :D

mofugly13
03-05-2014, 9:54 AM
My guess, they let Peruta stand, no intervenor, no en banc. They let Kamala request en banc in Richards, with Peruta as citeable precedent.

I am an electrician...

IPSICK
03-05-2014, 9:56 AM
I see no reason for this judge to release Richards in light of a Peruta en banc. He could have held it in his pocket and not released it.

Kamala loses and no 9th circuit judge will intervene either.JMHO

More and more starting to look like it. Will this make other jurisdictions (i.e. Alameda County) see the writing on the wall? Of course, I'm certain they'll hold out until the bitter end. Which may only be a couple of days now.

Scottie15
03-05-2014, 9:58 AM
Maybe I will submit that application today...

Excellent work CGF. Thank you and Congrats!

dantodd
03-05-2014, 10:00 AM
And since AG Harris was notified in Richards and the court ruled on the same grounds it would seem her intervention request in Peruta is mooted.

Big Ben
03-05-2014, 10:01 AM
Wow! This does make my predictions for a sua sponte en banc seem much less likely. I've been waiting anxiously for the clock to run out on that one.

Now we wait on the standing questions for the AG and Brady bunch.

sighere
03-05-2014, 10:04 AM
AG probably has standing. Of course that does not mean the 9th will grant En Banc. Now with Yolo going down it would seem that the 9th will let the 3 judge decision stand. There are a few L.A. County, LAPD, and Torrance cases in so Cal. Will be interesting to see if those go the same way.

VAReact
03-05-2014, 11:26 AM
Excellent news! Now waiting for the 3rd shoe to drop ..... Baker :thumbsup:

Amen, brother. I can't wait!

Tmckinney
03-05-2014, 11:29 AM
Its procedural and doesn't add anything to the law. It says, under Peurta you lose. Nothing to add to the discourse so its not published and you cant site it in some other case to support your position.

But it does suggest that Peruta will stand because if it is overturned, then this case would be "wrongly" decided, so I would assume they would wait. I think they read Peruta and said to themselves, "yep that seems right" and now they can cross this case off the docket

OleCuss
03-05-2014, 11:48 AM
And since AG Harris was notified in Richards and the court ruled on the same grounds it would seem her intervention request in Peruta is mooted.

That is very interesting. Thank you.

fizux
03-05-2014, 11:56 AM
The opinion (all 2 pages of it, plus related court forms) is now attached to the OP.

dantodd
03-05-2014, 12:07 PM
I think they read Peruta and said to themselves, "yep that seems right" and now they can cross this case off the docket

No, he didn't read Peruta and say "yep that seems right". He wrote Peruta.

Davidwhitewolf
03-05-2014, 1:12 PM
No, he didn't read Peruta and say "yep that seems right". He wrote Peruta.

Oh, I dunno. I'll be the first to admit I'll reread my own work product from time to time with a self-satisfied smirk. I'd imagine that's gotta be even more of a temptation if you're a judge.

Peruta wasn't a particularly snarky opinion, but I did find this one (http://www.volokh.com/2007/07/13/federal-appellate-judge-dissents-without-reading-majority-opinion/) amusing some years back.

As an observer, I want to express how it's just so satisfying for me, remembering first-hand the dearth of RKBA law review articles and legal scholarship on the 2nd Amendment back when I was in law school 20 years ago, to see the very deliberate, well-crafted, masterfully executed project to remedy that defect has come to fruition, first in Heller and now in these cases. Being able to read the arguments in the briefs had an emotional impact for me you young whippersnappers may not be able to fully appreciate. Hearing those arguments in person, articulated by giants in the field, two Decembers ago, was, frankly, one of the highlights of my legal career -- and I was JAFO in the audience, no more than that.

Congratulations to everybody involved.

Bargearse
03-05-2014, 1:51 PM
If I am the betting man, AG's request for intervention and En Banc ARE DENIED!

Southwest Chuck
03-05-2014, 2:10 PM
If I am the betting man, AG's request for intervention is Granted and En Banc DENIED!

Fixed it for you :p . That way she can file for cert and take it to SCOTUS if she dares !

OleCuss
03-05-2014, 2:11 PM
Oh, I dunno. I'll be the first to admit I'll reread my own work product from time to time with a self-satisfied smirk. I'd imagine that's gotta be even more of a temptation if you're a judge.

Peruta wasn't a particularly snarky opinion, but I did find this one (http://www.volokh.com/2007/07/13/federal-appellate-judge-dissents-without-reading-majority-opinion/) amusing some years back.

As an observer, I want to express how it's just so satisfying for me, remembering first-hand the dearth of RKBA law review articles and legal scholarship on the 2nd Amendment back when I was in law school 20 years ago, to see the very deliberate, well-crafted, masterfully executed project to remedy that defect has come to fruition, first in Heller and now in these cases. Being able to read the arguments in the briefs had an emotional impact for me you young whippersnappers may not be able to fully appreciate. Hearing those arguments in person, articulated by giants in the field, two Decembers ago, was, frankly, one of the highlights of my legal career -- and I was JAFO in the audience, no more than that.

Congratulations to everybody involved.

I appreciate that perspective. I don't have the training or the history to fully appreciate it, but having done a bit of reading and having followed the news for quite a few decades - I think I have at least an inkling of where you are coming from.

Some days are good.

Intel0116
03-05-2014, 3:54 PM
first off waaaahooooooo

second, this makes it official that GMC is done for?

The Tiger
03-05-2014, 4:35 PM
first off waaaahooooooo

second, this makes it official that GMC is done for?

Same question. Was GMC addressed? I thought it was part of the case but not specifically mentioned?

Tincon
03-05-2014, 4:36 PM
second, this makes it official that GMC is done for?

No, see here: http://www.calguns.net/calgunforum/showpost.php?p=13590297&postcount=1996

mAd mOrdigan
03-05-2014, 9:19 PM
darn and I thought this case would take care of GMC.

ddestruel
03-05-2014, 9:24 PM
darn and I thought this case would take care of GMC.

earlier in the Peruta discussion it was brought up that it appears the courts want to leave may issue as an option for states or for that matter most options on the table for states, not making any regulatory scheme the accepted norm or benchmark, and at the least not hamstringing any state approach. which i guess falls in line with states rights, keeping with allowing each states system to be a testing ground for different approaches just not allowing the outright outlawing or encumbering of a right. instead the 9th seemed to be more interested in attacking the as applied portions. as such everything about the CA system stands for now just the arbitrary application by certain individuals doesn’t tow the line any more.




I did feel that this was worth posting for the sake of stirring the pot
http://californiaconcealedcarry.com/blog/index.php?title=richards_v_prieto_will_fail_and_pe ruta_v&more=1&c=1&tb=1&pb=1

fizux
03-05-2014, 9:30 PM
darn and I thought this case would take care of GMC.Peruta already got us to 1st & Goal on that issue. GMC will be viewed for what it is -- a smokescreen to deny a constitutional right.

HPBrowningMK3
03-05-2014, 10:25 PM
Peruta already got us to 1st & Goal on that issue. GMC will be viewed for what it is -- a smokescreen to deny a constitutional right.

They may try it of course, especially LA, SF and a few other died in the wool gun grabbing counties, but there will be hell to pay for it. I can only hope NRA, SAF and CGF win and force them to write a huge check for their civil right violatiins. That's the only language the tards understand.

CZ man in LA
03-05-2014, 10:41 PM
I can only hope NRA, SAF and CGF win and force them to write a huge check for their civil right violatiins. That's the only language the tards understand.

They don't care because the payments come from tax dollars. "Oh we lost the lawsuit and we have to pay these fines. Meh, we'll just raise taxes and let the peons deal with it."

mkasda
03-05-2014, 11:41 PM
They don't care because the payments come from tax dollars. "Oh we lost the lawsuit and we have to pay these fines. Meh, we'll just raise taxes and let the peons deal with it."

So when can the Yolo Sheriff be held personally liable for civil rights violations?

Maestro Pistolero
03-06-2014, 1:09 AM
So when can the Yolo Sheriff be held personally liable for civil rights violations?

When the case is completely settled, appeals and all, and he is held in contempt of court for not following the order. He is not likely that stupid.

Tincon
03-06-2014, 1:10 AM
When the case is completely settled, appeals and all, and he is held in contempt of court for not following the order. He is not likely that stupid.

Actually, I think he can be held liable as soon as the mandate issues in Peruta.

dantodd
03-06-2014, 5:23 PM
This thread is long enough. Let's not totally derail it.

dantodd
03-12-2014, 1:14 PM
What is the appeal and en banc timeline here? Has the district mandate been held pending Peruta?

JoshuaS
03-12-2014, 3:36 PM
Literally this time

:twoweeks:

stag6.8
03-12-2014, 4:26 PM
so when march 26 comes ...is that when they listen to the intervention/enbanc..in which takes more time to come back with a decision...OR...is march 26 the day when everything is decided..yea or nay to intervention/enbanc?

madsend81
03-12-2014, 5:40 PM
March 26 is the date that responses are due from San Diego and the Peruta team regarding the intervention requests. The court will then review them and make a decision on intervention. How long that will take is anyone's guess.

dantodd
03-12-2014, 6:04 PM
So, the time to file for review of this case is the same as the new time in Peruta?

Gray Peterson
03-12-2014, 6:35 PM
So, the time to file for review of this case is the same as the new time in Peruta?

At this time, the date of En banc review for Richards is the same date or near the same date as the response by the Peruta plaintiffs to the AG, Brady, and CPOA intervention requests.

hoffmang
03-12-2014, 8:31 PM
At this time, the date of En banc review for Richards is the same date or near the same date as the response by the Peruta plaintiffs to the AG, Brady, and CPOA intervention requests.

My litigation time alloment means I haven't looked closely. Have you charted the two deadlines in the cases? It feels like the Richards mandate issuance day is just a little earlier than the reply brief due date in Peruta...

-Gene

dantodd
03-13-2014, 9:02 AM
My litigation time alloment means I haven't looked closely. Have you charted the two deadlines in the cases? It feels like the Richards mandate issuance day is just a little earlier than the reply brief due date in Peruta...

-Gene

I hope you are right, and is suspect it might be important. Two bites from the same apple and all that.

Paladin
03-13-2014, 9:08 AM
I hope you are right, and is suspect it might be important. Two bites from the same apple and all that.
And then if/when we win Baker, that might give the HI AG an opportunity to attack Peruta en banc.

Three bites at the apple.... ;)

dantodd
03-13-2014, 9:31 AM
And then if/when we win Baker, that might give the HI AG an opportunity to attack Peruta en banc.

Three bites at the apple.... ;)

Baker is different as it deals with a different statute so the HI AG would not be defending the same statute. If Peruta, Richards or Baker are accepted by SCOTUS and there are petitions outstanding for the others I would expect consolidation though it is not a given.

Also, realize that even if an en banc panel revokes Baker or Richards it has no direct effect on Peruta. Unless there is a sua sponte call or an en banc grant in Peruta that decision cannot be revoked or put on hold by another court at the circuit level. Add to that the fact that the AG has much clearer standing in Richards than Peruta and possibility that she would be granted in Richards and denied standing in Peruta is a pretty reasonable outcome. She knows this as well and I'm sure that is why she and Prieto have not yet filed an appeal/rehearing request.

dca965
03-13-2014, 2:39 PM
ALSO - here is an update from the Yolo website posted today:

http://www.yolocountysheriff.com/wp-...ons-Update.pdf

PRESS RELEASE
Contact Person: Sheriff E.G. Prieto
Date: March 13, 2014
Subject: Update on Concealed Weapons Decision
The Ninth Circuit decision in Richards regarding this office’s concealed weapon carry permit policy is not yet final, nor is the Peruta decision on which it is based.
Also, no court has enjoined Yolo from applying its current policy. At the request of the State Attorney General, the Ninth Circuit has extended indefinitely the finality deadline in Peruta to consider whether the State Of California and other interested parties may challenge that decision in the absence of the Sheriff for San Diego County.
We will be seeking en banc review of the decision in the Yolo County case and that decision will not become final until that process is completed. We have been in contact with the Attorney General’s office in this regard and will work with it regarding the two decisions as circumstances warrant. Unless and until these decisions become final, our current concealed carry policy will remain in effect.

"Sticking to his guns....."

Paladin
03-13-2014, 6:11 PM
Baker is different as it deals with a different statute so the HI AG would not be defending the same statute.
So? I didn't say it was the same statute. It may attack the same interpretation of the 2nd A RKBA (i.e., Peruta).


Also, realize that even if an en banc panel revokes Baker or Richards it has no direct effect on Peruta. Unless there is a sua sponte call or an en banc grant in Peruta that decision cannot be revoked or put on hold by another court at the circuit level.
Peruta can be overturned if one of them goes en banc and the 11 judge en banc panel comes to a contradictory conclusion than the Peruta 3-judge panel. This can work in Peruta or Richards (or Baker), if Peruta is controlling law. In Richards, Peruta is obviously controlling. We don't know about Baker yet.

Add to that the fact that the AG has much clearer standing in Richards than Peruta and possibility that she would be granted in Richards and denied standing in Peruta is a pretty reasonable outcome. She knows this as well and I'm sure that is why she and Prieto have not yet filed an appeal/rehearing request.
New post just above says Prieto-Yolo will be asking for en banc review in Richards. Here it is w/emphasis added by me:

ALSO - here is an update from the Yolo website posted today:

http://www.yolocountysheriff.com/wp-content/uploads/2014/03/Concealed-Weapons-Update.pdf

PRESS RELEASE
Contact Person: Sheriff E.G. Prieto
Date: March 13, 2014
Subject: Update on Concealed Weapons Decision
The Ninth Circuit decision in Richards regarding this office’s concealed weapon carry permit policy is not yet final, nor is the Peruta decision on which it is based.
Also, no court has enjoined Yolo from applying its current policy. At the request of the State Attorney General, the Ninth Circuit has extended indefinitely the finality deadline in Peruta to consider whether the State Of California and other interested parties may challenge that decision in the absence of the Sheriff for San Diego County.
We will be seeking en banc review of the decision in the Yolo County case and that decision will not become final until that process is completed. We have been in contact with the Attorney General’s office in this regard and will work with it regarding the two decisions as circumstances warrant. Unless and until these decisions become final, our current concealed carry policy will remain in effect.

IVC
03-13-2014, 7:20 PM
Peruta can be overturned if one of them goes en banc and the 11 judge en banc panel comes to a contradictory conclusion than the Peruta 3-judge panel. This can work in Peruta or Richards (or Baker), if Peruta is controlling law.

Not quite. If Peruta becomes controlling law it cannot be overturned by any other case - from the technical standpoint, Peruta is no different than any other cited law in Richards, it just happens to be the only one.

An en banc decision in Richards that goes against a controlling law would be no different than any other decision where a court would contradict itself - an invalidation of stare decisis and a really big problem for the court. It just won't happen.

At this time, it's safe to say that the only game in town is Peruta and that everything else is contingent upon the outcome of that case. Prieto has to appeal in case Peruta is overturned in order to extend that decision to Richards. Should he not appeal and Peruta gets reversed, Richards wouldn't automatically get reversed too - it might be based on Peruta, but it's a separate case and would need separate reversal.

At this time, the request for en banc in Richards is just a technicality to keep that case tied to Peruta. All the real action will happen only in Peruta.

dantodd
03-13-2014, 7:26 PM
Peruta can be overturned if one of them goes en banc and the 11 judge en banc panel comes to a contradictory conclusion than the Peruta 3-judge panel. This can work in Peruta or Richards (or Baker), if Peruta is controlling law.


Yes, but Peruta cannot be depublished by the panel and it will be the law of the land until the full panel hears the case and writes a contradictory opinion. In the interim there WILL be licenses issued under the Peruta holdings. This is a good thing.

Paladin
03-13-2014, 7:44 PM
Not quite. If Peruta becomes controlling law it cannot be overturned by any other case - from the technical standpoint, Peruta is no different than any other cited law in Richards, it just happens to be the only one.

An en banc decision in Richards that goes against a controlling law would be no different than any other decision where a court would contradict itself - an invalidation of stare decisis and a really big problem for the court. It just won't happen.
Compare Bowers v. Hardwick (1986) to Lawrence v. Texas (2003). That's a 180 by SCOTUS in less than 20 years. So much for stare decisis.

Here's we're talking about 11 judge en banc panel vs. 3 judge panel of CA9. Stare decisis won't even slow them down if they want to gut Peruta....

At this time, it's safe to say that the only game in town is Peruta ...

At this time, the request for en banc in Richards is just a technicality to keep that case tied to Peruta. All the real action will happen only in Peruta.
Prieto is asking for en banc since CA9 may not grant CA AG her wish to intervene.

Paladin
03-13-2014, 7:51 PM
Yes, but Peruta cannot be depublished by the panel and it will be the law of the land until the full panel hears the case and writes a contradictory opinion. In the interim there WILL be licenses issued under the Peruta holdings. This is a good thing.
The more CCWs the sooner, the better. Look at how many SOs are changing their policies and PRACTICES right now, just because the "serfs" are storming the gates w/applications.

What I was doing is pointing out that things aren't over until they're over. Our enemies are cornered and desperate. We should try to anticipate their possible counter moves. That's all.

Frankly, I'd LOVE for en banc not occur in all 3 cases, SCOTUS take Drake, and the entire nation get a RKBA.

But until that day, "keep your powder dry."

IVC
03-13-2014, 8:02 PM
Here's we're talking about 11 judge en banc panel vs. 3 judge panel of CA9. Stare decisis won't even slow them down if they want to gut Peruta....

Gutting Peruta through issuing conflicting opinion before the ink is dry on the original case is highly unlikely. That would completely undermine the court and would all but guarantee a hammer by SCOTUS and national shall-issue.

Even if they were so political and agenda driven to sacrifice integrity of the court, there is little they could do to make it stand. I would put a lot of money down against it.

Note: I'm only talking about using non-Peruta case to gut Peruta.

Prieto is asking for en banc since CA9 may not grant CA AG her wish to intervene.

I would disagree here. Prieto doesn't have a prayer if Peruta stands, so the only reason to appeal is to piggy back off of any decision made directly in Peruta.

Gray Peterson
03-13-2014, 8:04 PM
A note: An 11 Judge Panel is not bound by decisions of 3 Judge Panels.

IVC
03-13-2014, 8:32 PM
A note: An 11 Judge Panel is not bound by decisions of 3 Judge Panels.

As long as it's the same case. Otherwise, a published opinion by a 3 judge panel is controlling.

Paladin
03-13-2014, 8:47 PM
Gutting Peruta through issuing conflicting opinion before the ink is dry on the original case is highly unlikely. That would completely undermine the court and would all but guarantee a hammer by SCOTUS and national shall-issue.

Even if they were so political and agenda driven to sacrifice integrity of the court, there is little they could do to make it stand. I would put a lot of money down against it.

Note: I'm only talking about using non-Peruta case to gut Peruta.Like I pointed out above, SCOTUS did that against SCOTUS in a major, controversial issue less than 20 years later.

No point in further speculation: we'll see what happens soon enough.

I would disagree here. Prieto doesn't have a prayer if Peruta stands, so the only reason to appeal is to piggy back off of any decision made directly in Peruta.
The reason I see this as a possibility is because of "politics" among the judges -- if Kammie does not get to intervene, no one might want to be the one to call for an en banc vote even if there is a "wing" that would support it. But, if Prieto steps up, that may give the anti judges "cover"/justification they need to do what they want to do.

Again, all just speculating. We'll see what we will see.

If Peruta does get finalized for awhile, CGN/CGF needs to make sure as many serfs as possible get their apps in (to both PDs and SOs to reduce bottlenecks), and get CCWs. That way if SCOTUS does not take a Carry case (or does, but we lose), although we won't be able to stop the antis w/Con law/2nd A BoR, we'll make the political cost too great for major urban SOs to go back to restrictive issuance policies (consolidating our gains). Not ideal, but better than what we have right now....

Gray Peterson
03-13-2014, 9:10 PM
As long as it's the same case. Otherwise, a published opinion by a 3 judge panel is controlling.

FRAP or decision cite please? I thought en banc panels were convened to deal with inter-panel conflicts?

I also seem to remember a few years ago that a DADT challenge case was appealed to the 1st circuit, and requested en banc from the get-go to because Cook v. Gates 3 judge panel decision foreclosed any arguments. They were declined, of course, and eventually the statute was repealed.

Wolverine
03-13-2014, 9:16 PM
Yes, but Peruta cannot be depublished by the panel and it will be the law of the land until the full panel hears the case and writes a contradictory opinion. In the interim there WILL be licenses issued under the Peruta holdings. This is a good thing.

I believe the panel's opinion is depublished (or the equivalent) when en banc is granted.

I don't believe Prieto has any chance of gaining en banc review, even the dissenter in Peruta (Thomas?) signed on to the Richards v Prieto Reverse and Remand. There is nothing to review - either Peruta is the law or not. Prieto will probably end up waiting for the District to issue an injunction, then if Peruta is still live Prieto can request a stay until Peruta is resolved (easily granted).

Of the potential intervenors in Peruta, interestingly, Prieto probably would have the best reasons for being granted intervenor status. I wonder if they try at this late date.

IVC
03-13-2014, 9:42 PM
FRAP or decision cite please? I thought en banc panels were convened to deal with inter-panel conflicts?

Rules 35 and 40 both address rehearing. Neither specifies that an en banc can be requested to deal with an unrelated case that is published.

Why would you believe that en banc request in Richards would be able to address published opinion in Peruta except through creation of conflicting opinions? Even Thomas who was in dissent in Peruta didn't try to pull off such a stunt by dissenting in Richards (he concurred based on at the time standing ruling in Peruta.)

dave_cg
03-13-2014, 9:44 PM
Of the potential intervenors in Peruta, interestingly, Prieto probably would have the best reasons for being granted intervenor status. I wonder if they try at this late date.
How do you figure that? What would give them standing?

IVC
03-13-2014, 9:45 PM
I believe the panel's opinion is depublished (or the equivalent) when en banc is granted.

Correct, but only the opinion that is being reviewed en banc can be depublished.

The scenario that is being floated here is that en banc in Richards would cause depublishing of the standing opinion in Peruta (assuming it stands.) Those are two separate cases.

IVC
03-13-2014, 9:48 PM
How do you figure that? What would give them standing?

Too late. The window for petitions to intervene closed a while ago.

As for standing, Prieto would have much better case than Bradys (who will almost certainly not get it) and marginally better case than Harris (the ruling affects Prieto's policies more than it invalidates a state law.) It's all hypothetical, of course, so not much point in discussing it.

dantodd
03-13-2014, 9:58 PM
I believe the panel's opinion is depublished (or the equivalent) when en banc is granted.

I don't believe Prieto has any chance of gaining en banc review, even the dissenter in Peruta (Thomas?) signed on to the Richards v Prieto Reverse and Remand. There is nothing to review - either Peruta is the law or not. Prieto will probably end up waiting for the District to issue an injunction, then if Peruta is still live Prieto can request a stay until Peruta is resolved (easily granted).

Of the potential intervenors in Peruta, interestingly, Prieto probably would have the best reasons for being granted intervenor status. I wonder if they try at this late date.

No. The panel may choose to depublish the initial CA opinion or they may leave it in place until they make their decision. Depublish in is within the power of the en banc panel but it isn't automatic.

However; the Richards en banc panel (if there is one) cannot depublish Peruta. Also, Peruta is controlling in this situation since it was published first. Now, while 2 weeks is not much time it does set stare decisis though I doubt the en banc panel would care much.

I'm not sure why Gray doesn't think that a decision by a 3 judge panel wouldn't be binding against an en banc panel, if that were the case 90+% of the aces decided by the 9th wouldn't be binding on any case heard en banc.

IVC
03-13-2014, 10:19 PM
I'm not sure why Gray doesn't think that a decision by a 3 judge panel wouldn't be binding against an en banc panel, if that were the case 90+% of the aces decided by the 9th wouldn't be binding on any case heard en banc.

I believe he means that the decision by a 3 judge panel is not binding on en banc review of the same case (which is true.)

hoffmang
03-13-2014, 10:28 PM
The whole point of an en banc panel is that it is the only entity short of the Supreme Court that can overrule a 3 judge panel of the same circuit. It absolutely has the power to over rule any prior 3 judge panel decision - no matter how young or old.

Edited to add: Take a look at a decent law review on the subject here: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1666&context=mulr

-Gene

dantodd
03-13-2014, 10:49 PM
The whole point of an en banc panel is that it is the only entity short of the Supreme Court that can overrule a 3 judge panel of the same circuit. It absolutely has the power to over rule any prior 3 judge panel decision - no matter how young or old.

Edited to add: Take a look at a decent law review on the subject here: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1666&context=mulr

-Gene

I don't think anyone argued that the en banc panel couldn't overturn the decision of the 3 judge panel. As you said it is the reason for the panel to exist. However; that doesn't mean that they simply disregard the rulings of the 3 judge panels in their circuit either. In fact, the review you posted makes it pretty clear that the relationship is in fact not very clear.

I have no mister epsilon that if Richards is overturned en banc that it would not implicate Peruta. Merely that an en banc panel reviewing Richards wouldn't have the option to depublish Peruta in the interim.

hoffmang
03-13-2014, 11:16 PM
I don't think anyone argued that the en banc panel couldn't overturn the decision of the 3 judge panel. As you said it is the reason for the panel to exist. However; that doesn't mean that they simply disregard the rulings of the 3 judge panels in their circuit either. In fact, the review you posted makes it pretty clear that the relationship is in fact not very clear.

I have no mister epsilon that if Richards is overturned en banc that it would not implicate Peruta. Merely that an en banc panel reviewing Richards wouldn't have the option to depublish Peruta in the interim.

I will try this again. All en banc panels can completely and directly overturn any prior 3 judge panel decision in the same circuit. Whether a Richards en banc could depublish the Peruta case if it's mandate hasn't issued is a wildly grey area. I'll agree that an issued mandate in Peruta could not be called back by an en banc panel in Richards. En banc panels (which are only panels in the 9th - usually it's all judges in a Circuit) have extremely broad intra district powers.

-Gene

dantodd
03-13-2014, 11:20 PM
I will try this again. All en banc panels can completely and directly overturn any prior 3 judge panel decision in the same circuit. Whether a Richards en banc could depublish the Peruta case if it's mandate hasn't issued is a wildly grey area. I'll agree that an issued mandate in Peruta could not be called back by an en banc panel in Richards. En banc panels (which are only panels in the 9th - usually it's all judges in a Circuit) have extremely broad intra district powers.

-Gene

You're saying that any time an en banc panel is convened it can choose to overturn any previous ruling regardless of the question before the court? I don't think anyone is arguing that they are not able to rule on the question before them as they see fit but to suggest that they can overturn any ruling in their circuit without regard for the question in front of them seems odd.

I suspect that we are not arguing but rather not communicating effectively.

IVC
03-13-2014, 11:33 PM
I'll agree that an issued mandate in Peruta could not be called back by an en banc panel in Richards.

If this is your statement, we all agree. It's just that your several previous posts seem to imply that this is precisely what an en banc *could* do.

gemini1
03-14-2014, 4:01 PM
I will try this again. All en banc panels can completely and directly overturn any prior 3 judge panel decision in the same circuit. Whether a Richards en banc could depublish the Peruta case if it's mandate hasn't issued is a wildly grey area. I'll agree that an issued mandate in Peruta could not be called back by an en banc panel in Richards. En banc panels (which are only panels in the 9th - usually it's all judges in a Circuit) have extremely broad intra district powers.

-Gene

Sorry, not the brightest bulb, so this might be a dumb question.

So if both Peruta & Richards goes en banc, does that mean that if they can reverse/overturn the decision on Richards, they cannot do it again on Peruta (or vise versa)? So like whatever happen, we still win?

wazdat
03-14-2014, 5:39 PM
I read this last night and found it enlightening. It's a Word doc but worth the read.

En Banc Revealed (http://works.bepress.com/context/abigail_stecker/article/1001/type/native/viewcontent)

Taxidave
03-14-2014, 5:45 PM
Sorry, not the brightest bulb, so this might be a dumb question.

So if both Peruta & Richards goes en banc, does that mean that if they can reverse/overturn the decision on Richards, they cannot do it again on Peruta (or vise versa)? So like whatever happen, we still win?

I will try this again. All en banc panels can completely and directly overturn any prior 3 judge panel decision in the same circuit. Whether a Richards en banc could depublish the Peruta case if it's mandate hasn't issued is a wildly grey area. I'll agree that an issued mandate in Peruta could not be called back by an en banc panel in Richards. En banc panels (which are only panels in the 9th - usually it's all judges in a Circuit) have extremely broad intra district powers.
I think what's being stated is that an En Banc can overrule any 3 panel decision with the circuit but not withdraw mandates already given out.

dantodd
03-14-2014, 6:20 PM
Sorry, not the brightest bulb, so this might be a dumb question.

So if both Peruta & Richards goes en banc, does that mean that if they can reverse/overturn the decision on Richards, they cannot do it again on Peruta (or vise versa)? So like whatever happen, we still win?

Not at all. If either is taken and overturned we lose both rulings and have to go to SCOTUS.

dantodd
03-14-2014, 6:24 PM
I think what's being stated is that an En Banc can overrule any 3 panel decision with the circuit but not withdraw mandates already given out.

If it happens the mandate is invalidated. My point was that AFAIK an en banc panel can only withdraw a ruling regarding their current case before their opinion/order is released.

For example, when the en banc panel took Nordyke they depublished the 3 judge panel's opinion before they started their proceedings.

I do not believe that an en banc panel hearing Richards can withdraw Peruta but a panel hearing Peruta would invalidate Richards if they withdrew Peruta because Richards relies on Peruta.

hoffmang
03-14-2014, 7:10 PM
Let me be clear with a hypothetical.

An 11 judge en banc in Richards could not pull back the mandate in Pertua should it be issued over a short period. However, should the 11 judge en banc panel issue an opinion in Richards that contradicted the Peruta 3 judge panel, then Peruta would no longer be good law in the 9th Circuit and the mandate would be effectively and pragmatically moot at that point.

So it is a true statement that an 11 judge en banc panel in Richards can overrule Peruta.

-Gene

IVC
03-14-2014, 7:27 PM
An 11 judge en banc in Richards could not pull back the mandate in Pertua should it be issued over a short period. However, should the 11 judge en banc panel issue an opinion in Richards that contradicted the Peruta 3 judge panel, then Peruta would no longer be good law in the 9th Circuit and the mandate would be effectively and pragmatically moot at that point.

So it is a true statement that an 11 judge en banc panel in Richards can overrule Peruta.

Ok, we now completely agree. Just let's make it also clear what the probability of a panel going against the previous *standing* court ruling is: 10^(-20) or so.

Even Thomas who was a *dissent* in Peruta *concurred* in Richards solely based on stare decisis. That should give us an idea of how likely this scenario is. What we're talking about is in the fringes of jurisprudence, where the court undermines its own authority by issuing a contradictory ruling just to appease underlying political agendas of some judges. Let's call it "improbable" rather than "impossible" in order to stay mathematically correct.

dantodd
03-14-2014, 9:08 PM
Let me be clear with a hypothetical.

An 11 judge en banc in Richards could not pull back the mandate in Pertua should it be issued over a short period. However, should the 11 judge en banc panel issue an opinion in Richards that contradicted the Peruta 3 judge panel, then Peruta would no longer be good law in the 9th Circuit and the mandate would be effectively and pragmatically moot at that point.

So it is a true statement that an 11 judge en banc panel in Richards can overrule Peruta.

-Gene

Which is exactly what I was saying. If O'Scannlain can direct the en banc review to Richards instead of Peruta then he won't lose his opinion as happened in Nordyke. He was the first judge to incorporate the second amendment and now he is the first judge to clearly and unequivocally define the right to carry as a fundamental part of the second amendment's core. I'm sure he doesn't want to lose that.

M. D. Van Norman
03-14-2014, 9:11 PM
It was a historic decision, which makes it all the more surprising that the Supreme Court has run away from the issue thus far.

hoffmang
03-14-2014, 10:13 PM
Ok, we now completely agree. Just let's make it also clear what the probability of a panel going against the previous *standing* court ruling is: 10^(-20) or so. Emphasis added.

That's imprecise.

If you mean: a panel = 3 judge panel, then yes I agree with you.

If you mean: a panel = 11 judge CA9 special en banc panel, then no, the odds are directly in correspondence to the mix of ideologies randomly drawn to the 11 judge panel as the 11 judge panel is not bound AT ALL by ANY previous 3 judge panel of the same circuit (or other circuits - except SCOTUS.)

-Gene

Paladin
03-15-2014, 6:32 AM
What we're talking about is in the fringes of jurisprudence, where the court undermines its own authority by issuing a contradictory ruling just to appease underlying political agendas of some judges. Let's call it "improbable" rather than "impossible" in order to stay mathematically correct. (emphasis added to above quote)

No, we're talking about an 11 judge panel (CA9's version of en banc), contradicting a 3 judge panel -- not an uncommon occurrence. The only wrinkle is that it is happening w/a different case right after the original case became final and published -- unusual, but not forbidden, so I'm sure anti judges would be willing to face whatever professional blowback they may receive in order to infringe upon our RKBA.

If O'Scannlain can direct the en banc review to Richards instead of Peruta then he won't lose his opinion as happened in Nordyke. He was the first judge to incorporate the second amendment and now he is the first judge to clearly and unequivocally define the right to carry as a fundamental part of the second amendment's core. I'm sure he doesn't want to lose that.
If a Richards 11 judge en banc panel does de novo review (looks at the legal issue as if it had never been previously addressed by CA9 (i.e., by the Peruta 3 judge panel)), I believe they can look at O'Scannlain's published Peruta opinion and interact with it, either positively or negatively. His opinion won't be the controlling law, but it and his arguments could easily be incorporated by reference into the 11 judge's opinion which would then be the controlling law.

speedrrracer
03-15-2014, 6:36 AM
What we're talking about is in the fringes of jurisprudence, where the court undermines its own authority by issuing a contradictory ruling just to appease underlying political agendas of some judges. Let's call it "improbable" rather than "impossible" in order to stay mathematically correct.

emphasis mine

The court can't undermine it's own authority. If it reverses itself, it's just demonstrating that the 11-judge panel had a different mix of ideologies than the 3-judge panel. If it does so, it's still the 9th Circuit, and still has the same authority it did the day before. If you're talking about something soft like "reputation" or "peer pressure", remember the 9th is still the most / 2nd most reversed circuit, so it's a bit like saying the whore is embarrassed to be seen with a man that's not her husband.

This whole idea that the courts care about such things seems like nonsense to me, but it's a guarantee there's tons of which I'm not aware. What makes you think the courts care? Maybe I'll change my mind when I see this new (to me) information.

IVC
03-15-2014, 9:10 AM
No, we're talking about an 11 judge panel (CA9's version of en banc), contradicting a 3 judge panel -- not an uncommon occurrence. The only wrinkle is that it is happening w/a different case right after the original case became final and published -- unusual, but not forbidden, so I'm sure anti judges would be willing to face whatever professional blowback they may receive in order to infringe upon our RKBA.

There are ways to depublish Peruta. A panel in Richards deciding to depublish Peruta is not one of them.

A panel in Richards can completely butcher the decision in Richards and can create a published opinion (Richards is unpublished for obvious reasons) that can be in many ways contradictory to Peruta. Should this happen, it wouldn't invalidate or depublish Peruta, but it would create an intra-circuit split (http://fclr.org/fclr/articles/html/2008/fedctslrev1.pdf).

IVC
03-15-2014, 9:20 AM
The court can't undermine it's own authority. If it reverses itself, ...

Publishing an opinion in Richards that is "different" (let's not call it "contradictory" as someone would have to determine it as such) than the one in Peruta is NOT "reversing itself." It would be an intra-circuit split (http://fclr.org/fclr/articles/html/2008/fedctslrev1.pdf). Follow the link to see how these splits occur and what happens next.

An en banc in Richards issuing an opinion that is significantly different from Peruta would be no different than a 3-judge panel in Richards issuing an opinion that is significantly different from Peruta. Given that Thomas didn't even want to be in dissent in Richards, even though it wouldn't have changed the outcome, shows that it's very unlikely judges would use their personal agenda to create a nightmare process in the Ninth Circuit.

LostInSpace
03-15-2014, 1:28 PM
... the odds are directly in correspondence to the mix of ideologies randomly drawn to the 11 judge panel ...

Does this mean that the main hope at this point is that the right kind of 11-judge panel will be drawn when Peruta or Richards goes en banc, or are there additional circumstances to the current state of these cases that further increase the likelihood of a postive outcome?

dantodd
03-15-2014, 6:47 PM
If a Richards 11 judge en banc panel does de novo review (looks at the legal issue as if it had never been previously addressed by CA9 (i.e., by the Peruta 3 judge panel)), I believe they can look at O'Scannlain's published Peruta opinion and interact with it, either positively or negatively. His opinion won't be the controlling law, but it and his arguments could easily be incorporated by reference into the 11 judge's opinion which would then be the controlling law.

Absolutely. I never said otherwise. The court is certainly able to rule differently than any CA9 ruling that has not been affirmed by SCOTUS. My point was merely that this is something that happens AFTER their review of the case and their ruling is published. They may not depublish Peruta at the onset of a Richards hearing. Also, they cannot depublish the opinion in their eventual order, they can rule contrarily and their, newer, ruling would be controlling.

hoffmang
03-15-2014, 9:21 PM
Publishing an opinion in Richards that is "different" (let's not call it "contradictory" as someone would have to determine it as such) than the one in Peruta is NOT "reversing itself." It would be an intra-circuit split (http://fclr.org/fclr/articles/html/2008/fedctslrev1.pdf). Follow the link to see how these splits occur and what happens next.

No.

If an 11 judge en banc panel comes to a different decision than Peruta in Richards then Peruta becomes bad law and may as well be moot. Only another 11 judge en banc panel of the 9th or the Supreme Court could overrule an 11 judge panel in Richards that overturned Peruta.

By definition, an en banc panel ends an intra-circuit split.

-Gene

Bhart356
03-15-2014, 10:08 PM
Exactly Gene. According to the article the Ninth Circuit automatically triggers an en blanc hearing to resolve the intra-circuit split. This leads me to conclude that if Richards is overturned by en blanc, then the ruling on Richards automatically takes precedence over Peruta.

IVC
03-15-2014, 11:16 PM
If an 11 judge en banc panel comes to a different decision than Peruta in Richards then Peruta becomes bad law and may as well be moot.

From page 3 of the document:

In most federal courts of appeal, resolution of an intra-circuit split is straightforward: the earliest decision controls.13 But in the Eighth Circuit, a third panel faced with conflicting decisions of two previous panels may choose which decision to follow,14 and in the Ninth Circuit, a third panel is instructed to immediately call for the en banc court to resolve an intracircuit conflict.15

The Richards panel cannot invalidate Peruta. It can issue a contradictory ruling that violates stare decisis and that would require another panel to resolve the issue.

If Thomas kept up with his dissent and indicated that he wanted to go against the standing precedent, I would put probability of intra-circuit split to some meaningful small number. The way it stands, it's about epsilon.

speedrrracer
03-16-2014, 6:44 AM
From page 3 of the document:

In most federal courts of appeal, resolution of an intra-circuit split is straightforward: the earliest decision controls.13 But in the Eighth Circuit, a third panel faced with conflicting decisions of two previous panels may choose which decision to follow,14 and in the Ninth Circuit, a third panel is instructed to immediately call for the en banc court to resolve an intracircuit conflict.15

The Richards panel cannot invalidate Peruta. It can issue a contradictory ruling that violates stare decisis and that would require another panel to resolve the issue.


I think the disconnect is that Gene is not saying the Richards panel (a 3-judge panel) can invalidate Peruta...I think Gene is referring to an en banc panel, in a future scenario where Richards goes en banc before Peruta (or Peruta doesn't go en banc ever).

The overuse of the word "panel" is to blame, imo

Your doc makes it clear that an en banc panel is called in the 9th if two 3-judge panels reverse each other (gasp! I said reverse! I said it again! Ni! Ni! I meant, "One or more of the panels is drop-dead wrong because it's full of idiots"), but that's not what Gene is saying, I think. The doc does not lay out the specific scenario here (a single 3-judge panel rules X in case Y, then case Z comes up, essentially the same as Y, perhaps there is no intra-circuit split as a result of that 3-judge panel's decision but it goes en banc, but Z's en banc panel flips the result in case X), but it does make it clear that in the general sense, en banc panels get to b**chslap 3-judge panels at will.

FABIO GETS GOOSED!!!
03-16-2014, 6:45 AM
From page 3 of the document:

In most federal courts of appeal, resolution of an intra-circuit split is straightforward: the earliest decision controls.13 But...in the Ninth Circuit, a third panel is instructed to immediately call for the en banc court to resolve an intracircuit conflict[/B].15

The Richards panel cannot invalidate Peruta. It can issue a contradictory ruling that violates stare decisis and that would require another panel to resolve the issue.

"Panel" in your quote means 3 judge panel. That is the only definition of "panel" that is used in the abstract you linked to. The Richards panel opinion does not conflict with the Peruta panel opinion, there is no intra-circuit split as described in the abstract. If, however, Richards goes en banc and there is a different outcome, a third 3 judge panel in a future, similar case would not be calling for an en banc court to resolve a conflict between the prior en banc decision in Richards and the Peruta panel decision, as the prior en banc decision is already the last word on the matter. The Richards en banc decision would have the same status as the en banc decision in the scenario described in the abstract; it trumps conflicting panel opinions. The Richards en banc court can and would presumably overrule the Peruta panel decision in any event if it decides Richards differently than the panel has.

IVC
03-16-2014, 10:00 AM
The Richards en banc court can and would presumably overrule the Peruta panel decision in any event if it decides Richards differently than the panel has.

Would en banc court in Richards be able to order depublishing of Peruta?

dantodd
03-16-2014, 10:38 AM
The Richards panel cannot invalidate Peruta. It can issue a contradictory ruling that violates stare decisis and that would require another panel to resolve the issue.


Richards has been heard and ruled by the 3 judge panel.the probability of a rehearing by a 3 judge CA9 panel at this point is nil, or close enough as to not need discussion.

We are really only dealing with the en banc question in each of the cases. If either is taken en banc it implicates the other.

FABIO GETS GOOSED!!!
03-16-2014, 12:33 PM
Would en banc court in Richards be able to order depublishing of Peruta?

Could an en banc court in Richards order that the Peruta disposition be changed from an "opinion" to a "memorandum"? I would think not; I suppose I could research it but I wouldn't expect to find anything on point because I can't think of any reason why an en banc court deciding one case wouldn't simply overrule another case to the extent that the other case is inconsistent with whatever the en banc court decides in the case before it. Assuming it could do it, why would an en banc court deciding one case prefer instead to change the status of a disposition in another from published to unpublished? (Forgive me if you explained why you think this is significant somewhere else in this thread, I'm only looking at the last page at the moment. ETA: actually just the last few posts, in looking at some earlier posts on this page there appears to be a lack of precision with respect to the various terms being used.)

Bhart356
03-16-2014, 2:23 PM
Let's do a reality check here. Does anyone think the entire Ninth Circuit would vote for an en blanc review on Richards if one of the possible outcomes is an intra-circuit split? The judges have an option to take either case en blanc. Therefore it seems like the sensible thing would be to take Peruta en blanc if they were so inclined.

The alternative is a procedural mess. They would vote to take Richards en blanc and if the three judge panel were overruled there would be one of two possibilities. Subject to varying academic speculation contained in this thread, either the Peruta ruling is overturned because en blanc has already spoken. Or an intra-circuit split occurs and a different en blanc panel is stood up to resolve the split.

But the reality is the Ninth Circuit judges can vote to take either case en blanc. So why not Peruta? Seems like a lot cleaner way to do it.

Drivedabizness
03-16-2014, 2:39 PM
First of all, the "entire" 9CA does not need to vote for an en banc review - just a majority (excluding the Peruta 3). If the majority does vote for en banc review, an 11-judge panel will conduct it.

It does make more sense that they would take up Peruta since their Richards decision rested on it.

dantodd
03-16-2014, 3:01 PM
Let's do a reality check here. Does anyone think the entire Ninth Circuit would vote for an en blanc review on Richards if one of the possible outcomes is an intra-circuit split? The judges have an option to take either case en blanc. Therefore it seems like the sensible thing would be to take Peruta en blanc if they were so inclined.

The alternative is a procedural mess. They would vote to take Richards en blanc and if the three judge panel were overruled there would be one of two possibilities. Subject to varying academic speculation contained in this thread, either the Peruta ruling is overturned because en blanc has already spoken. Or an intra-circuit split occurs and a different en blanc panel is stood up to resolve the split.

But the reality is the Ninth Circuit judges can vote to take either case en blanc. So why not Peruta? Seems like a lot cleaner way to do it.

I do t think anyone is saying that if the en banc panel reversed Richards that it would leave Peruta standing or that it would cause any kind of intra-circuit split.

speedrrracer
03-16-2014, 3:45 PM
Let's do a reality check here. Does anyone think the entire Ninth Circuit would vote for an en blanc review on Richards if one of the possible outcomes is an intra-circuit split? The judges have an option to take either case en blanc. Therefore it seems like the sensible thing would be to take Peruta en blanc if they were so inclined.

The alternative is a procedural mess. They would vote to take Richards en blanc and if the three judge panel were overruled there would be one of two possibilities. Subject to varying academic speculation contained in this thread, either the Peruta ruling is overturned because en blanc has already spoken. Or an intra-circuit split occurs and a different en blanc panel is stood up to resolve the split.



A split, as I read it, is between two equal (3-judge) panels. There cannot be a split between a 3-judge panel and an en banc panel. That's like saying there's a split between the 9th Circuit and SCOTUS. No..SCOTUS just slapped the 9th down, or they didn't. The en banc will either overrule the lesser panel or it won't.

Paladin
03-16-2014, 8:14 PM
Absolutely. I never said otherwise. The court is certainly able to rule differently than any CA9 ruling that has not been affirmed by SCOTUS. My point was merely that this is something that happens AFTER their review of the case and their ruling is published. They may not depublish Peruta at the onset of a Richards hearing. Also, they cannot depublish the opinion in their eventual order, they can rule contrarily and their, newer, ruling would be controlling.
You guys seem to be fixated upon depublication -- I don't give one wit about that. All I care about is whether an 11 judge en banc panel in Richards can overturn the opinion of the 3 judge panel in Peruta.

I say, "Yes, it can."

What say you?

dantodd
03-16-2014, 8:39 PM
You guys seem to be fixated upon depublication -- I don't give one wit about that. All I care about is whether an 11 judge en banc panel in Richards can overturn the opinion of the 3 judge panel in Peruta.

I say, "Yes, it can."

What say you?

Of course. What some are pointing out is that an en banc panel hearing Richards cannot pull Peruta before issuing their ruling.

Paladin
03-16-2014, 8:45 PM
Of course. What some are pointing out is that an en banc panel hearing Richards cannot pull Peruta before issuing their ruling.
Of course. Never said they could.

I had a feeling we were talking pass each other. :facepalm: ;)

Out of here for a few days. Don't forget what tomorrow is... :clover: :cheers2:

dantodd
03-16-2014, 8:47 PM
Of course. Never said they could.

I had a feeling we were talking pass each other. :facepalm: ;)

Out of here for a few days. Don't forget what tomorrow is... :clover:

Why doesn't CalGuns have a like button? Facebook has a like button.

ryan_j
03-18-2014, 5:49 PM
Looks like Prieto filed his en banc appeal. Attached.

(Courtesy of esqappellate at MDShooters)

safewaysecurity
03-18-2014, 5:52 PM
En Banc on a unanimous decision lol. Whats the timetable for the court to approve or deny en banc?

CG of MP
03-18-2014, 5:57 PM
Unanimous but with an arguably oxymoronic 'dissenter' who still voted with the majority... remember the dissenter said that they only went along with the majority based only on Peruta - and Peruta is HIGHLY attacked in the En Banc request linked above.

ryan_j
03-18-2014, 6:00 PM
Well, it was only unanimous because Peruta is precedential, and the decision was one page that basically said, "see Peruta."

Gray Peterson
03-18-2014, 6:00 PM
En Banc on a unanimous decision lol. Whats the timetable for the court to approve or deny en banc?

FRAP 35 9th CIrcuit local rules:

(2) Petition for Rehearing En Banc. When the clerk receives a timely petition for rehearing en banc, copies are sent to all active judges. If the panel grants rehearing it so advises the other members of the Court, and the petition for rehearing en banc is deemed rejected without prejudice to its renewal after the panel completes action on the rehearing. Cases
are rarely reheard en banc.

If no petition for rehearing en banc has been submitted and the panel votes to deny rehearing an order to that effect will be prepared and filed.

If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panel's recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or
gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing en banc.

Any active judge who is not recused or disqualified and who entered upon active service before the request for an en banc vote is eligible to vote. A judge who takes senior status after a call for a vote may not vote or be drawn to serve on the en banc court. This rule is subject to two exceptions: (1) a judge who takes senior status during the pendency of an en
banc case for which the judge has already been chosen as a member of the en banc court may continue to serve on that court until the case is finally disposed of; and (2) a senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc court when it reviews a decision of a panel of which the judge was
a member.
The En Banc Coordinator notifies the judges when voting is complete. If the
recommendation or request fails of a majority, the En Banc Coordinator notifies the judges and the panel resumes control of the case. The panel then enters an appropriate order denying en banc consideration. The order will not specify the vote tally.


I think it's 14 days (for a reply from the appellee, specifically Gura and Richards), then 21 days, then another 14 days, then another 21 days. If it takes longer than that, it's likely that there are dissents from denial of rehearing en banc occurring.

OleCuss
03-18-2014, 6:45 PM
I will readily admit that I don't know (and don't really want to know) all the details about how the en banc process works, but I'd sort of imagine that Richards is unlikely to get en banc if Peruta doesn't.

Not a guarantee on that, however, since Prieto at least has some sort of standing to request en banc whereas it is not at all clear that anyone who wants to request en banc review in Peruta actually has the ability to do so.

Anyway, it'll be entertaining!

dca965
03-18-2014, 7:34 PM
Looks like Prieto filed his en banc appeal. Attached.

(Courtesy of esqappellate at MDShooters)

A B.S. appeal written by Ultra- Liberal left wing attorney's who are regular players at the State Capitol and it's liberal left-winging politicos. :facepalm:

Librarian
03-18-2014, 7:34 PM
And why is it the petitioner cannot spell "necessary"?

Paladin
03-18-2014, 7:52 PM
I really did not like the way that Rule was written, so I did some bolding, underlining, broke paragraphs apart, indicated two major branches in the decision tree, and moved the last paragraph (dealing w/the vote results), to the end of Branch A (dealing w/voting). Hope this makes it easier to follow/understand.

You'll see, there are a number of points where, if consideration and a vote is called for, this Rule does not specify a time limit.

Bottom line: next major date is April 8th.

(2) Petition for Rehearing En Banc.

When the clerk receives a timely petition for rehearing en banc, copies are sent to all active judges.

If the panel grants rehearing it so advises the other members of the Court, and the petition for rehearing en banc is deemed rejected without prejudice to its renewal after the panel completes action on the rehearing. Cases are rarely reheard en banc.
My guess is the panel here won't rehear since all 3 judges agreed that if Peruta is good law, Richards must follow.

If no petition for rehearing en banc has been submitted and the panel votes to deny rehearing an order to that effect will be prepared and filed.
This doesn't apply since Pietro-Yolo asked for en banc.

Now we get to the parts that do apply, what I'll call Branch A and Branch B.

Branch A:
If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration.
So April 8th is the deadline for a judge to ask for the 3 judge panel to give its recommendation.

Will we hear if a judge calls for this?

The Rule says "its recommendation". Does the panel have to be unanimous in their recommendation?

How long does the 3 judge panel have to give its recommendation? Will they announce the panel's recommendation?

Upon receipt of the panel's recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken.
Do they announce if a judge calls for en banc consideration/vote?

How long after a judge calls for en banc consideration does the voting take place?

The En Banc Coordinator notifies the judges when voting is complete. If the recommendation or request fails of a majority, the En Banc Coordinator notifies the judges and the panel resumes control of the case. The panel then enters an appropriate order denying en banc consideration. The order will not specify the vote tally.
How long does it take (i.e., how much time is allowed) for all of the qualified judges in CA9 to cast their votes?

Do they announce the completion of the vote? Whether the request passed or failed? Or do we just wait for the 3 judge panel to publish its order?

Branch B:
If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing en banc.
If no judge asks for en banc by April 8th, CA9 appeals are exhausted -- Peruta is good law. :party:

Only hope for antis then is appealing to SCOTUS for cert. (Where's the Russian Roulette emoticon? ;))

Re. Judges:
Any active judge who is not recused or disqualified and who entered upon active service before the request for an en banc vote is eligible to vote. A judge who takes senior status after a call for a vote may not vote or be drawn to serve on the en banc court. This rule is subject to two exceptions: (1) a judge who takes senior status during the pendency of an en
banc case for which the judge has already been chosen as a member of the en banc court may continue to serve on that court until the case is finally disposed of; and (2) a senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc court when it reviews a decision of a panel of which the judge was a member.
Only interesting stuff to me is what I underlined: a member of the 3 judge panel may serve on the 11 judge en banc panel, even if they go "senior".

dca965
03-18-2014, 8:03 PM
Paladin- thank you for this awesome, understandable, and straight forward break down of the appeal!

Gray Peterson
03-18-2014, 8:50 PM
Paladin, I don't think those steps are announced. IIRC, from Nordyke, the only stop posted in docket was the judge calling sua sponte for en banc.

The panel does not have to be unanimous. This is where Judge O'Scannlain needs to convince his colleague's why his writing in Peruta was correct and all of the other circuits got it wrong. Basically, it's briefing letter, that we in the public will NEVER see, but will be a full throated defense. It's the briefing I would love to see considering the history of it.

IVC
03-18-2014, 10:32 PM
This is where Judge O'Scannlain needs to convince his colleague's why his writing in Peruta was correct and all of the other circuits got it wrong..

Except CA-7, which makes a huge difference...

Paladin
03-18-2014, 10:38 PM
Paladin, I don't think those steps are announced. IIRC, from Nordyke, the only stop posted in docket was the judge calling sua sponte for en banc.
Assuming Richards goes en banc appeal. How long would you guess the en banc appeals process would take from granting appeal (my guess: in 1 - 2 months from now if granted), to opinion?

The panel does not have to be unanimous. This is where Judge O'Scannlain needs to convince his colleague's why his writing in Peruta was correct and all of the other circuits got it wrong. Basically, it's briefing letter, that we in the public will NEVER see, but will be a full throated defense. It's the briefing I would love to see considering the history of it.
I'm sure it will be -- his legacy will be at stake. :chris:

Thx for the info.

fizux
03-18-2014, 11:18 PM
Except CA-7, which makes a huge difference...
...and all of the circuits with 100% shall-issue states that will not need to opine (for now), and DCCA (Palmer). That leaves 3 opinions against RTC, plus the 1st Cir (Hightower = bad facts = excuse for Antis).
Assuming Richards goes en banc appeal. How long would you guess the en banc appeals process would take from granting appeal (my guess: in 1 - 2 months from now if granted), to opinion?
SWAG: 9 months. Emphasis on "WA."

Maestro Pistolero
03-19-2014, 12:00 AM
For once, it would be really refreshing for the ninth to play against type and just let Peruta and Richards stand. Not holding my breath, of course.

Another fantasy of mine is that the next SCOTUS decision is at least 6-3 in our favor. Sooner or later, the scales must tip in one direction or another. These nail-biters are getting tiresome.

madsend81
03-19-2014, 10:13 AM
And why is it the petitioner cannot spell "necessary"?

That wasn't the only thing he couldn't spell. Do they lose points for typos in the petition?

Tincon
03-19-2014, 10:34 AM
That wasn't the only thing he couldn't spell. Do they lose points for typos in the petition?

They lose credibility, which is fairly important when making legal arguments.

IVC
03-19-2014, 10:43 AM
That wasn't the only thing he couldn't spell. Do they lose points for typos in the petition?

They do.

Using a spell checker should be a routine task for a professional engaging in what amounts to the core of their trade. Where else do they cut corners?

FABIO GETS GOOSED!!!
03-19-2014, 10:54 AM
They do.

Using a spell checker should be a routine task for a professional engaging in what amounts to the core of their trade. Where else do they cut corners?

Note this is not snark: I think Kilmer takes the prize for typos, I have seen lots in his briefs.

Tincon
03-19-2014, 10:57 AM
They do.

Using a spell checker should be a routine task for a professional engaging in what amounts to the core of their trade. Where else do they cut corners?

Spell checker doesn't catch everything. I'm notorious for errors myself, I can't see them; I only see what I intended to write. Of course I immediately see the errors in the work of someone else. This is why a second (or even third) set of eyes is critical for something as important as an appellate filing (and really, anything filed with a court).

kcbrown
03-19-2014, 12:13 PM
They lose credibility, which is fairly important when making legal arguments.

It would be most amusing and interesting if we were to somehow get data that relates spelling error rate in briefs to successes and failures. :)

CG of MP
03-19-2014, 12:26 PM
Sigh.. It would be so nice if we could talk or speculate about the new stuff happening IN THIS CASE... Oh say for instance The En Banc request posted here yesterday and what will come of it and what it all means...
http://www.calguns.net/calgunforum/attachment.php?attachmentid=311659&d=1395193398

Of course pissing and moaning about typos and other minutia furthers our cause so much more...
/snark

CCWFacts
03-19-2014, 12:27 PM
It would be most amusing and interesting if we were to somehow get data that relates spelling error rate in briefs to successes and failures. :)

You can't get data because bad spelling correlates with other bad lawyering.

Spelling and grammar mistakes weaken any type of written argument. If you read, say, a medical textbook and found superficial mistakes in it, would you take the author as someone who is a reliable expert? No, of course not, because we assume that someone who is careless about the obvious stuff is also careless about the less-obvious stuff.

taperxz
03-19-2014, 12:33 PM
Sigh.. It would be so nice if we could talk or speculate about the new stuff happening IN THIS CASE... Oh say for instance The En Banc request posted here yesterday and what will come of it and what it all means...
http://www.calguns.net/calgunforum/attachment.php?attachmentid=311659&d=1395193398

Of course pissing and moaning about typos and other minutia furthers our cause so much more...
/snark

An En Banc request has more speculation to talk about than the speculation of what poor spelling can or can't do. Ceri us lee.

CG of MP
03-19-2014, 12:46 PM
zactly!

taperxz
03-19-2014, 12:57 PM
zactly!

We need less speculative posts though. En Banc request speculation is like talking to a wall.

OleCuss
03-19-2014, 2:07 PM
Spell checker doesn't catch everything. I'm notorious for errors myself, I can't see them; I only see what I intended to write. Of course I immediately see the errors in the work of someone else. This is why a second (or even third) set of eyes is critical for something as important as an appellate filing (and really, anything filed with a court).

I don't see why that is not done routinely. There are plenty of us on this forum who would volunteer to do a quick proofread for the most egregious of errors.

Yeah, they've not met most of us, but I'd think a number of us in their areas would be willing to meet them and to be vetted to make sure we're who we say we are and can keep our mouths shut.

There are plenty of us who routinely keep secrets much bigger than what will be in a briefing.

kcbrown
03-19-2014, 2:58 PM
You can't get data because bad spelling correlates with other bad lawyering.


Well, that's the presumption, at any rate. It's a logical presumption, but it would be nice to have data that backs it.



Spelling and grammar mistakes weaken any type of written argument. If you read, say, a medical textbook and found superficial mistakes in it, would you take the author as someone who is a reliable expert? No, of course not, because we assume that someone who is careless about the obvious stuff is also careless about the less-obvious stuff.

Except that it is the entire job of the judge to discern the truth behind the arguments, spelling errors or no. Admittedly, they're just as human as anyone else, but being human does not excuse someone from consistently failing to do his job.

Maestro Pistolero
03-19-2014, 3:51 PM
I don't see why that is not done routinely. There are plenty of us on this forum who would volunteer to do a quick proofread for the most egregious of errors.

Yeah, they've not met most of us, but I'd think a number of us in their areas would be willing to meet them and to be vetted to make sure we're who we say we are and can keep our mouths shut.

There are plenty of us who routinely keep secrets much bigger than what will be in a briefing.

Agreed. It's a hair-pulling experience to read an important brief just after it has been filed and find glaring typos and misspells that could be caught and corrected in a matter of minutes if only a third party were given an opportunity. A simple typo could easily change the entire meaning of an argument with the substitution of a single incorrect word.

There's just no imaginable reason why, with so much at stake, that isn't standard operating procedure.

hoffmang
03-19-2014, 6:45 PM
Agreed. It's a hair-pulling experience to read an important brief just after it has been filed and find glaring typos and misspells that could be caught and corrected in a matter of minutes if only a third party were given an opportunity. A simple typo could easily change the entire meaning of an argument with the substitution of a single incorrect word.

There's just no imaginable reason why, with so much at stake, that isn't standard operating procedure.

Most of these things are read by at least three people and usually approaching 5. It's surprisingly easy to keep reading right by a non spelling typo again and again - only to *facepalm* once you're reading it again off the docket as filed...

-Gene

OleCuss
03-19-2014, 7:07 PM
Right. But I'd bet part of the reason is because the folk who are doing the proofreading are typically legally sophisticated and end up being distracted by the arguments and citations from actually noticing the spelling and that the word used is actually the wrong word.

Getting some educated non-legal types to do a review would likely catch quite a lot of the typos and gross grammar issues.

hoffmang
03-21-2014, 6:58 PM
The court of appeals has asked us to reply to the en banc petition by April 11: http://www.hoffmang.com/firearms/richards-v-prieto/Richards-en-banc-Order-reply-2014-03-21.pdf

This may mean that an en banc vote occurs in Richards before Peruta due to the intervenor issues in Peruta.

-Gene

freonr22
03-21-2014, 7:42 PM
you rarely respond/post before 12:00 am

hoffmang
03-21-2014, 7:55 PM
you rarely respond/post before 12:00 am

I've got a rare early evening that's not full of work, volunteer work, or family this evening.

-Gene

Funtimes
03-21-2014, 7:58 PM
Most of these things are read by at least three people and usually approaching 5. It's surprisingly easy to keep reading right by a non spelling typo again and again - only to *facepalm* once you're reading it again off the docket as filed...

-Gene

For me the key to catching errors is getting it off of the screen and onto paper. I can nail those errors so much better that way; I'm not sure if it's a mindscrew or not, but when someone is paying me to proof something that is what I do.

OleCuss
03-21-2014, 8:36 PM
I've got a rare early evening that's not full of work, volunteer work, or family this evening.

-Gene

Here's hoping it is a remarkably enjoyable evening!

fizux
03-21-2014, 10:31 PM
As a side note, Prof. Volokh's take on Baker (parallel Hawaii case):
http://m.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/20/hawaii-restrictions-on-gun-carrying-essentially-held-unconstitutional-for-now/

Paladin
03-25-2014, 8:41 PM
The court of appeals has asked us to reply to the en banc petition by April 11: http://www.hoffmang.com/firearms/richards-v-prieto/Richards-en-banc-Order-reply-2014-03-21.pdf

This may mean that an en banc vote occurs in Richards before Peruta due to the intervenor issues in Peruta.

-Gene
So, where does the non-moving party's response to the moving party's petition (and then the moving party's reply to the response), fit in the scheme of CA9's local rules under FRAP 35 posted above (http://www.calguns.net/calgunforum/showthread.php?p=13678593)?

Do those take place after a CA9 judge has asked the 3 judge panel for their recommendation and those documents aid the panel in making their recommendation? Or is gathering those documents merely anticipatory?

If those documents fit somewhere else in the process, where?

hoffmang
03-29-2014, 5:09 PM
Amici in support of Prieto/Yolo's en banc petition filed yesterday:

CA AG: http://www.hoffmang.com/firearms/richards-v-prieto/en-banc-pet-CA-State-Amicus-2014-03-28.pdf
The artist formerly known as LCAV: http://www.hoffmang.com/firearms/richards-v-prieto/en-banc-pet-LCPGV-Amicus-2014-03-28.pdf
Brady Center: http://www.hoffmang.com/firearms/richards-v-prieto/en-banc-pet-Brady-Amicus-2014-03-08.pdf

-Gene

ryan_j
03-29-2014, 5:20 PM
"The decision of the Peruta and Richards panel to contravene that judgment, and to decree that the San Diego County Sheriff’s Office and other California law enforcement, including Appellee Sheriff Prieto and Amicus Sheriff Doyle, must issue permits to carry loaded concealed handguns to anyone who applies and claims a generalized concern for personal safety, will have a dramatic impact on public safety and law enforcement. "

Oh boy. The old "blood in the streets" argument.

Anyone in Illinois care to chime in? Or are you busy rowing your boat in the river of blood?

dantodd
03-29-2014, 5:27 PM
"The decision of the Peruta and Richards panel to contravene that judgment, and to decree that the San Diego County Sheriff’s Office and other California law enforcement, including Appellee Sheriff Prieto and Amicus Sheriff Doyle, must issue permits to carry loaded concealed handguns to anyone who applies and claims a generalized concern for personal safety, will have a dramatic impact on public safety and law enforcement. "


That is probably true, but why are they opposed to safer streets?

ryan_j
03-29-2014, 5:29 PM
One more:

One need look no further than the daily news to see that this decision places
the public’s safety in jeopardy. In Florida, which has a system nearly identical to the one that the panel decision would force on the entire Ninth Circuit, Chad Oulson was shot in a Florida movie theater on January 13, 2014 by a man with a concealed weapons permit after an argument over texting and popcorn.


That "man with a concealed weapons permit" is a retired cop, who can carry in all 50 states and is generally trusted to carry firearms, even in heavily restricted areas such as New York City, NJ, MD and California. and who will still be able to carry if the Peruta/Richards is overturned. One has to wonder exactly who's buying this.

LostInSpace
03-29-2014, 5:35 PM
In Florida, which has a system nearly identical to the one that the panel decision would force on the entire Ninth Circuit ...

This seems to be nonsense, CA sheriffs likely have a much more rigorous screening system than Florida. Not all shall issue states are identical.

taperxz
03-29-2014, 5:37 PM
Amici in support of Prieto/Yolo's en banc petition filed yesterday:

CA AG: http://www.hoffmang.com/firearms/richards-v-prieto/en-banc-pet-CA-State-Amicus-2014-03-28.pdf
The artist formerly known as LCAV: http://www.hoffmang.com/firearms/richards-v-prieto/en-banc-pet-LCPGV-Amicus-2014-03-28.pdf
Brady Center: http://www.hoffmang.com/firearms/richards-v-prieto/en-banc-pet-Brady-Amicus-2014-03-08.pdf

-Gene

If I were a Brady supporter, I would be embarrassed with the arguments submitted to the court to overturn Richards. They kinda left out facts for their argument.:facepalm:

IVC
03-29-2014, 5:56 PM
If I were a Brady supporter, I would be embarrassed with the arguments submitted to the court to overturn Richards. They kinda left out facts for their argument.:facepalm:

If I were their supporter I would be proud. One doesn't join Brady Campaign to discuss facts.

CG of MP
03-29-2014, 6:00 PM
One more:

One need look no further than the daily news to see that this decision places
the public’s safety in jeopardy. In Florida, which has a system nearly identical to the one that the panel decision would force on the entire Ninth Circuit, Chad Oulson was shot in a Florida movie theater on January 13, 2014 by a man with a concealed weapons permit after an argument over texting and popcorn.


That "man with a concealed weapons permit" is a retired cop, who can carry in all 50 states and is generally trusted to carry firearms, even in heavily restricted areas such as New York City, NJ, MD and California. and who will still be able to carry if the Peruta/Richards is overturned. One has to wonder exactly who's buying this.

EXACTLY RIGHT - and God I hope someone points this out in the response to this bs. In addition since they want to bring Florida into it, I seem to remember that Florida, after passing their CCW expansion laws experienced a serious DROP in crime.

Ah yes:
http://concealedcampus.org/wp-content/blogs.dir/1/files/2011/12/ccw_gun_facts.pdf



Fact:
After passing their concealed carry law, Florida's homicide rate fell from 36% above the national average to 4% below, and remains below the national average (as of the last reporting period, 2005).152


152


Cramer C and Kopel D. Shall issue: the new wave of concealed handgun permit laws. Golden CO: Independence Institute Issue Paper. October 17, 1994


A little more Florida from the same source:



Fact:

In Florida, a state that has allowed concealed carry since late 1987, you are twice as likely to be attacked by an alligator as by a person with a concealed carry permit.171

171 Florida Department of State, “Concealed Weapons/Firearms License Statistical Report”, 1998 –
Florida Game and Fresh Water Fish Commission, December 1998



A little more bout Florida from a different source:

https://www.gunowners.org/sk0802htm.htm

* Florida: concealed carry helps slash the murder rates in the state. In the fifteen years following the passage of Florida's concealed carry law in 1987, over 800,000 permits to carry firearms were issued to people in the state. [13] FBI reports show that the homicide rate in Florida, which in 1987 was much higher than the national average, fell 52% during that 15-year period -- thus putting the Florida rate below the national average. [14]

14Florida's murder rate was 11.4 per 100,000 in 1987, but only 5.5 in 2002. Compare Federal Bureau of Investigation, "Crime in the United States," Uniform Crime Reports, (1988): 7, 53; and FBI, (2003):19, 79.


Let's also drop the rate of rape:


* Orlando, FL. In 1966-67, the media highly publicized a safety course which taught Orlando women how to use guns. The result: Orlando's rape rate dropped 88% in 1967, whereas the rape rate remained constant in the rest of Florida and the nation. [19]

[19]Kleck, "Crime Control," at 13.


I am sure a learned paralegal is going to have fun compiling a raft of stats a mile high that can be used against these bozos.

IMHO Our side REALLY does need to point out that, as the poster above notes, the shooter would have NOT been precluded from a weapon in any case EVEN CURRENTLY IN CALIFORNIA - BECAUSE HE WAS A FRICKING RETIRED COP - which already makes him one of the elitist class's non-deny pets!