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Old 12-03-2012, 4:56 PM
spalterego spalterego is offline
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My "short" attempt to provide a Layman's explanation of what is going on.

Federal Statute 42 U.S.C. 1983 which allows citizens to sue for violations of their civil rights has a provision (incorporated into Fed. Rule of Civil Procedure 5) requiring that if a plaintiff's lawsuit challenges a federal or state law as unconstitutional, the plaintiff/court are required to notify the Attorney General (if challenging a Federal law) or the relevant State AG (if challenging a state law) if the lawsuit does not name the state itself (or a state officer) as a defendant.

This makes some sense because if you are challenging the constitutionality of a law with either national or state application, the Court wants to make sure that a National or State level entity defend it.

So, in Peruta, the lawsuit named the Sheriff/county as a defendant. However, the Sheriff is not a State officer, only a county officer.
If the lawsuit challenges the constitutionality of California's Concealed Carry Licensing law, the rule is intended to allow the State AG a chance to take over the case and defend the state law, rather than having a mere County Officer defend the constitutionality of the law.

As it turns out, the Peruta plaintiff(s)/attorneys never notified the State AG and it appears that the Court itself failed to notify the State AG.

It may be arguable whether the Peruta claim challenges the Constitutionality of the California Concealed Carry licensing law. IF I recall correctly, the claim is that the San Diego county Sheriff's office interpretation or implementation of "may issue" and specifically of "good cause" violates Peruta's 2A rights.

Whether this distinction avoids the requirement for notification remains to be seen.

Likewise, I don’t know whether the Peruta attorneys strategically omitted the notice or did so out of ignorance of the requirement. (one could argue the Peruta claim does not challenge the constitutionality of the law and that they didn’t want to litigate against the state and would rather litigate against the county and thus purposefully failed to notify the state AG)

In Richards (the case Mr. Gura is litigating), the attorney’s did notify the State AG’s office that they were challenging the constitutionality of California’s Concealed Carry Licensing law (on a number of different grounds). However, while unclear, it seems that the Federal Dist. Court itself failed to notify the State AG.

Now, nearly on the eve of oral arguments in the three cases (scheduled for Friday Dec. 6, 2012), the Court of Appeals has advised the attorneys in the Richards (Gura) and Peruta cases to be prepared to discuss the import, if any, of the fact that the State of California (via the state Attorney General’s office) has failed to appear to defend the law.

Neither 1983 nor the Rules of Civil Procedure specify what the court should do in a situation where a claim clearly challenges the constitutionality of a state law but the plaintiff/court failed to notify the state AG. There have been some similar situations arise in the past and from those cases we THINK that the Court of Appeals has a fair amount of flexibility in choosing how to respond.

Peruta could argue and the Ct. of App. could decide that the lawsuit does NOT in fact challenge the constitutionality of the law and allow Peruta to proceed.

The Ct. of App. could disagree but decide that this harmless error and continue. It could stay a decision and ask the Cal. State AG to provide an opinion (does the AG want to get involved: if so, is the AG satisfied with getting involved at the Appeals stage or does the AG want it remanded to be retried at the Dist. Ct. level or something else). The Ct. of App. could decide the District Court lacked jurisdiction to try the case when it failed to notify the State AG and remand for retrial.

Unlike Peruta (where they appear to be arguing it is only the Sheriff’s application/interpretation that is being challenged) the Richard’s case explicitly challenges the constitutionality of the law. Accordingly, the Richard’s case clearly had to notify the State AG. Gura, the attorney for the Richards plaintiffs notified the State AG. However, this might not be technically sufficient if the Dist. Court itself failed to notify the State AG.

The Ct. of App. could decide that when the State AG receives actual notice (from the plaintiffs) it doesn’t matter if the technical requirement that the Dist. Ct. notify the State AG was not met. Alternatively, the Richards case could be in the same boat as Peruta if the Ct. of App. decides that only notice from the Dist. Ct. satisfies the requirement. I don't think this is likely but who knows.

In the initial post this was being presented as an example of why we should want experienced Civil Rights attorneys doing this kind of legal work. The Peruta attorney’s failed to notify the state AG (whether strategically or out of negligence I don’t know). This puts them at risk of having the Ct. of App. refuse to hear/decide their case delaying the ultimate resolution of that case, losing attorney’s fees etc.

I certainly agree with the sentiment and agree that Gura and SAF are better at this than Peruta et al. I do think that it would have been wiser for Peruta to wait. (even if Peruta ultimately wins and becomes the case the S. Ct. uses to announce “and bear” means carry that doesn’t mean it was the wisest or safest choice). However, while I do think that this is educational and may help illustrate the dangers of inexperienced counsel litigating high stakes important Civil Rights issues, I think that some people might have smelled a whiff of nyaa-nyaa boo-boo look at how those guys screwed up.

While I agree with the Richard/Gura camp as to the wisdom of the Peruta claim (or lack thereof) , I don’t think that means that the Richards/Gura camp is entirely devoid of ego. The back and forth between the Richards/Gura camp and the Peruta camp sometimes seems to devolve into a petty desire to get in the last word.

Is this good or bad for the overall fight for Carry Rights? Impossible to say.

IF the Ct. of Appeals finds that Peruta needed to but failed to provide notice to the state AG AND somehow “demotes” the Peruta case, I think that this is marginally better for the 2A because we then have what I think is a better case (Richards) and a better attorney (Gura) taking the clear lead in arguing for our carry rights.

If the Ct. of App. finds both Peruta AND Richards failed to provide a required notice AND then remands back to state court that would clearly delay our efforts to get a decision from the Ct. of Appeals. from the Ninth Cir. This should NOT affect the chances of our ultimately winning (or losing) the argument but does delay us by another 1-3 years. Of course with the composition of the S. Ct. in possible flux under an Obama presidency, it would be nice to get this before the S. Ct. sooner rather than later.

If the Ct. of App. allows both cases to go forward then we are in the same position we have been.

The S. Ct. could always take a 2A carry case from another circuit, but it would be nice to have a Ninth Cir. opinion, particularly if it found a 2A “carry” right and set up a conflict with other circuits.