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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-13-2014, 12:38 PM
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Default Peruta LTC FAQ - Request for full 9th Circuit en banc, 6/23

En Banc opinion of 6/9/16 at https://cdn.firearmspolicy.org/wp-co...nc-opinion.pdf

1) SD will appeal, so no immediate changes. Well, that was wrong.

That means there is no point to applying in places like LA or SD just yet; other issuing agencies may, as Sacramento, see 'the writing on the wall' and change policies. The decision will not be 'stayed' until either SD files for and 9th accepts en banc or SD files for cert, but apps submitted in the short window before those would not be processed in just a few days.

And, pretty much all of that was wrong.

Lorax3 sent me a link to an ABA doc on Rule 41 appeals. Most applicable is
Quote:
Where no party seeks either form of relief, the mandate “must issue 7 days after the time to file a petition for rehearing expires.” Fed. R. App. P. 41(b). The result of this 7-day period, in conjunction with the typical 14-day period under Rule 40 for filing a rehearing petition, is that the mandate usually issues 21 days after judgment if no party seeks rehearing or a stay of the mandate. ... By local rule, however, an appellate court may establish a different time for filing a rehearing petition and thus affect the date the mandate issues. See, e.g., Fed. Cir. R. 40(e) (allowing 30 days for civil cases not involving the United States); D.C. Cir. R. 35(a) (same).
So, if nothing intervenes, the mandate goes to the lower court on March 6, 21 days after Feb 13.

2) ONLY the 'good cause' part would change if this is upheld - still must
- apply
- pay
- do fingerprints
- pass background
- do training
- list firearms
- receive the permit
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Last edited by lorax3; 06-09-2016 at 7:27 AM..
  #2  
Old 02-13-2014, 12:46 PM
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We have a celebratory discussion thread here in this forum -
http://www.calguns.net/calgunforum/s...d.php?t=893372

a thank-you thread from Mr Peruta here - http://www.calguns.net/calgunforum/s...d.php?t=893436

and one just a bit more restrained in the 2A Litigation forum - http://www.calguns.net/calgunforum/s...d.php?t=893356

Please contribute to one of those; please start no more threads on the case.
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  #3  
Old 02-13-2014, 4:32 PM
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A clarification on 'appeal'. (Pending the longer post from CMontfort) As an ABC news story correctly puts it,
Quote:
San Diego County Sheriff Bill Gore could let the ruling stand and change his policy; ask that a special panel of 11 judges of the 9th Circuit rehear the case; or he could petition the U.S. Supreme Court to take it.
En Banc petitions are not automatically granted; today's ruling is officially in effect now, but if 9th should vote to accept an en banc petition, at that time today's decision would be 'on hold' until the hearing and subsequent decision.

No time limit is imposed on the Court for either accepting or denying the 'en banc' request, or on their decision once accepted.

mymonkeyman has more information on scheduling:
Quote:
There is no deadline for how long the Ninth Circuit can take until issuing a decision on a petition for rehearing or rehearing en banc, but generally at least one judge must call for an en banc vote within 21-160 days (depending on if a petition for panel rehearing is also sailed, if a request for response from the respondent is issued, if a request for comment from the panel is made and/or a stop clock request is made, see Ninth Circuit LR 35 advisory comments and General Order Chapter 5).

If a call to vote is made, generally there are 21 days for the judges to exchange bench memoranda, ie to talk with each other about the vote, and then 14 days to actually vote.

If the petition is granted, an order will generally issue quickly but there is no deadline. If the petition is denied, there may be opinions concurring or dissenting from the denial of the petition, which may delay it further.
Or, it could go really fast - but that is not the way to set your expectation.

Here is the 9ths rule on en banc: http://cdn.ca9.uscourts.gov/datastor...es.htm#1286137, FRAP 35

Here is the 9th's current list of en banc proceedings: http://www.ca9.uscourts.gov/enbanc/
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Last edited by Librarian; 02-13-2014 at 11:45 PM..
  #4  
Old 02-13-2014, 7:02 PM
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A bit of a 'teachable moment':

It is really helpful to use the names of the parties in a lawsuit in the thread title when starting a thread about that lawsuit.

Had everyone said to him/her self 'I am going to post about this very important lawsuit where Edward Peruta won', all would have been sensitive to the name 'Peruta' and realized that another thread on the suit would be a duplicate.
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  #5  
Old 02-15-2014, 10:59 AM
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Fiddletown, one of our lawyer members, gives a breakdown of the results of this opinion (when it is final) here: http://www.calguns.net/calgunforum/s...7&postcount=47
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  #6  
Old 02-21-2014, 3:30 PM
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San Diego will NOT appeal.

Some judge in 9th Circuit has until March 6 to ask for a rehearing, per SBrady.
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Last edited by lorax3; 02-21-2014 at 10:18 PM..
  #7  
Old 02-21-2014, 5:16 PM
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A reminder (h/t Dave Kopel at Volokh)
Quote:
The press release is scrupulously silent about the possibility of filing a petition for a writ of certiorari. The deadline for filing such a petition is 90 days from the entry of judgment, which was February 14 in the Peruta case. Supreme Court Rule 13.1
So there may still be an appeal, on or before May 16 ...
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  #8  
Old 02-21-2014, 8:46 PM
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Default More on 'staying'

The ABA doc also clarifies the staying of a mandate.

Quote:
If a party seeks either a rehearing or a stay of the mandate, those requests automatically stay issuance of the mandate. A rehearing petition automatically stays issuance until that request is denied or, if granted, until the rehearing proceedings conclude.
and
Quote:
Filing a petition for a writ of certiorari to the U.S. Supreme Court does not automatically stay the mandate. Nonetheless, certiorari petitions are a common basis for asking an appellate court to issue a stay.
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  #9  
Old 02-26-2014, 2:50 PM
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Since it keeps coming up ...

Although the specific direction from the 9th Circuit is going back to the lower court, to reverse its earlier ruling, opinions of Circuit Courts of Appeal apply throughout the entire are of that Circuit.

ALL of California and the other states in the 9th Circuit's area are affected by Peruta.
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  #10  
Old 03-01-2014, 2:54 PM
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3/1 update:

9th has stayed the mandate to the lower court; that's not a big issue, since San Diego has agreed to issue according to the requirements.

Brady Campaign and CA Attorney General submitted requests to be allowed to intervene; the Court said those were timely, so apparently they will look at those requests. Court also said the time for petitioning for rehearing has been extended in favor of those two requests.

What has NOT happened is the Court ruling on whether each may petition for rehearing.

First the Court would have to accept that idea, then, if it did, such petitions might be made, then the petitions considered and ruled on.
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  #11  
Old 03-05-2014, 7:36 PM
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3/5 New order: http://michellawyers.com/wp-content/...-Intervene.pdf

Respond by 21 days
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  #12  
Old 03-13-2014, 7:30 PM
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So anyone may keep up:

9th Circuit's page for the case:
http://www.ca9.uscourts.gov/content/..._id=0000000722

Michel & Associates page of case documents: http://michellawyers.com/guncasetrac...rutavsandiego/

The title of this thread will change to reflect updates in the case.
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  #13  
Old 03-27-2014, 6:39 PM
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Here's the Michel & Assoc response: http://cdn.ca9.uscourts.gov/datastor...lants_resp.pdf

San Diego/Gore were supposed to respond, and there is no indication that they did.
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  #14  
Old 03-30-2014, 10:24 PM
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Default Time ...

Whie waiting, I ran across the 9th Circuit's FAQ page.

Not encouraging for the impatient.
Quote:
17. How long does it take from the time of the notice of appeal until oral argument?

For a civil appeal, approximately 12-20 months from the notice of appeal date. If briefing isn't delayed, approximately 9-12 months from completion of briefing.

For a criminal appeal, approximately 4-5 months after briefing is complete.



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.



19. How long does it take to decide a petition for panel rehearing or petition for rehearing en banc?

The Court has no time limit. A decision on a petition for rehearing en banc may take a few months.
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  #15  
Old 04-02-2014, 5:51 PM
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Kamala & Co reply - http://michellawyers.com/wp-content/...California.pdf

Quote:
I. The Court Should Grant the State’s Unopposed Motion to Intervene Under Rule 24(a)(2) and (b)

Ii. Should the Court Reach the Issue, it Should Grant the State’s Motion to Intervene Under Rule 24(a)(1)
ETA h/t ddandoy - thanks!
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Last edited by Librarian; 04-02-2014 at 6:06 PM..
  #16  
Old 04-04-2014, 9:17 PM
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I am reminded that the Brady Campaign did file something, such as it is.

Discussion thread -- http://www.calguns.net/calgunforum/s...d.php?t=915480
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  #17  
Old 04-17-2014, 3:31 PM
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See new thread - http://www.calguns.net/calgunforum/s...d.php?t=921476 - regarding en banc procedure docs published at Michel & Assoc. (Thanks!)
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  #18  
Old 04-21-2014, 11:38 AM
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Summary of things from Michell and Associates -

http://michellawyers.com/2014/nra-vi...rnia-ccw-case/

Quote:
So what happens next?

The Peruta decision is still not final. At least not yet. The three judge panel ruling in the Peruta case could be reconsidered by what’s called a “limited en banc” panel in the Ninth Circuit, and it could also be reconsidered by the U.S. Supreme Court. To read more about the process and how this case could develop, visit here.
h/t member urquhart.

ETA
Quote:
... the case could be tied up for awhile on en banc review, perhaps for over a year.
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Last edited by Librarian; 04-21-2014 at 2:28 PM..
  #19  
Old 05-01-2014, 2:23 PM
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9th Circuit orders Gore to respond - see Tincon's thread
http://www.calguns.net/calgunforum/s...d.php?t=927641
and his other thread on the NRA article,
http://www.calguns.net/calgunforum/s...d.php?t=927421
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  #20  
Old 05-14-2014, 3:06 PM
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Response posted - http://cdn.ca9.uscourts.gov/datastor...to%20Order.pdf

1) AG should be allowed to intervene

2) Case is not moot.

And now we wait some more.
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  #21  
Old 06-10-2014, 3:45 AM
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No changes since 5/14.

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  #22  
Old 06-23-2014, 3:32 PM
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Quote:
Originally Posted by CG of MP View Post
Published on Jun 23, 2014
Sean Brady of the Michel & Associates Peruta legal team discusses potential outcomes if Attorney General Kamala Harris' request to intervene in Peruta case is granted.


http://www.youtube.com/watch?v=QmnvJ...ature=youtu.be
Not 'news', but at least informed speculation.
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  #23  
Old 09-28-2014, 6:59 PM
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No news.

Just a reminder - there is no deadline; the court can take as long as it wants to do (or fail to do) anything.

So, there's no point in asking "when" - nobody knows, or can know, unless he/she works for the judges on the Peruta panel of the 9th Circuit.
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  #24  
Old 11-12-2014, 9:24 AM
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NOW we know: Nov 12, 2014 Ninth Circuit DENIES the requests to intervene from each and all of the California AG, the Brady Campaign, and the CPOA.
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  #25  
Old 11-12-2014, 10:16 AM
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And for those asking, "What is next?"

Quote:
From Chuck Michel, Senior Partner at Michel & Associates

"The Peruta ruling was a long overdue recognition of the right to obtain a license to carry a firearm to defend yourself. The Attorney General’s next action will determine whether the Peruta case ends here. Attorney General Harris could seek review of her request to intervene in the appeal by an eleven judge “en banc” panel of the Ninth Circuit, or by the Supreme Court. Regardless, pending requests for en banc review in similar cases that benefitted from the work done in the Peruta case could imperil the Peruta ruling. Supreme Court review of the Peruta decision would resolve this important issue once and for all."
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Last edited by lorax3; 11-12-2014 at 10:53 AM..
  #26  
Old 11-13-2014, 11:00 AM
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Further info from CD - http://www.calgunlaws.com/ca-nra-ila...o-shall-issue/

Quote:
The California Attorney General’s next action will determine whether the Peruta case ends here. She could seek review of the denial of her request to intervene in the appeal by an en banc panel of the Ninth Circuit or by the U.S. Supreme Court. If Attorney General Harris is successful in overturning the Court’s order and is allowed to intervene in the Peruta case, the Ninth Circuit Court judges will then vote on whether to re-hear the case en banc. Should they decide to do so, the court will either uphold the current decision supporting the Second Amendment or overturn it. They could, however, simply vote not to rehear the case, allowing the three judge panel decision to stand. If the Attorney General successfully appeals for intervention, the attorneys for Ed Peruta and the other plaintiffs will be asking the judges to do just that. Whatever the Ninth Circuit ends up doing in such a circumstance, either side would almost certainly petition a loss to the U.S. Supreme Court. NRA attorneys have prepared and posted an explanation of the en banc review process online for a description of the various machinations in this process.

There is yet another twist to this tale. Even if the Attorney General does nothing and the Peruta decision stands, pending requests for en banc review in similar cases that benefitted from the work done in the Peruta case could potentially imperil the Peruta ruling. Both the County of Yolo, California, in the case of Richards v. Yolo County, and the State of Hawaii, in the case of Baker v. Kealoha, have already petitioned for en banc review of the Ninth Circuit’s rulings in those cases essentially saying they lose because of Peruta. If those petitions are granted, the Peruta opinion will be in jeopardy of being overturned, just as if the Peruta opinion itself was being reviewed by the Court.
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  #27  
Old 11-26-2014, 5:28 PM
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Sigh. More delay ...
Quote:
November 26, 2014 – Today, California Attorney General (AG) Kamala Harris filed a request for en banc review of the Ninth Circuit’s denial of her request to intervene in the NRA supported case of Peruta v. San Diego,
...
The anti-gun rights groups have also filed a similar request for en banc review of the Ninth Circuit's denial of their requests to intervene in the case.
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  #28  
Old 11-27-2014, 10:48 AM
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Here is a summary of possible procedural paths -

Quote:
Originally Posted by Gray Peterson View Post

For people who do code development, the case essentially has been forked.

Now that a rehearing/rehearing en banc petition has been filed on the November 12th decision of the panel, here's what could happen:
  • Rehearing/rehearing en banc request doesn't get a judge interested in a vote or the majority vote (15) fails. No intervention. Harris can drop the case now or she can petition SCOTUS for purely for intervention, though it's extraordinarily unlikely that SCOTUS would grant intervention.
  • Rehearing/rehearing en banc request does get a majority of the active judges. A panel of the Chief Judge plus 10 random judges decides the intervention request. She needs 6 judges to say yes or else the November intervention decision is affirmed.
  • If the majority of the en banc 11 judge panel say yes to her intervention and overturn the panel's November intervention decision, her rehearing/rehearing en banc of the February decision will be considered. Requires, again, 15 judges to vote yes for en banc.
  • If there's another majority, another random panel of Chief Judge plus 10 judges will decide on the February carry decision.
  • If there isn't a majority to consider en banc, she will go to SCOTUS on the merits of the carry case because she was granted intervention. Either she or someone else close to her will argue in front of SCOTUS, and we'll have Paul Clement arguing in front of SCOTUS.

There's still the question on the mandate issuance of the February decision.
Thanks, Gray.
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  #29  
Old 12-03-2014, 11:44 AM
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Dec 3, 2014

9th orders Plaintiff/Appellant (Peruta and lawyers) to respond to requests for en banc on the intervenor ruling.

Response due within 21 days - Dec 24
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  #30  
Old 12-03-2014, 5:59 PM
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[[ Copied. // Librarian ]]

Quote:
Originally Posted by DarkSoul View Post
So in non-legalize, anyone know the current status of this mess? Are we still waiting for the 14, or 7, or 21 days to run out for KM to challenge? Or the court to decide, I'm so confused with this whole thing.
For both KM's intervention and the original Peruta opinion (in parallel) right now we have:

21 days for briefing by the parties and amici [G.O. 5.4(c)3]

plus

21 days for memoranda internally between judges [G.O. 5.5(a)]

plus

14 days for voting [G.O. 5.5(b)]

= 56 days + some paper shuffling

if en banc is denied then the panel takes back control of the case and continues where it left off (issue mandate).

if en banc is granted, Peruta is no longer law in the 9th and we have a year or so of uncertainty before the limited en banc court decides Peruta all over again from scratch.

Last edited by Librarian; 12-03-2014 at 6:20 PM..
  #31  
Old 12-03-2014, 10:36 PM
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Aaaaand, also today, http://cdn.ca9.uscourts.gov/datastor...2-03-2014B.pdf
Quote:
A judge of this Court having made a sua sponte call for a vote on whether
this case should be reheard en banc, the parties shall file, within 21 days from the
date of this order, simultaneous briefs setting forth their respective positions on
whether this case should be reheard en banc.
This is in addition to the brief required on whether the AG should be allowed to have her intervention reconsidered.

ETA Wolverine's post, above, includes the time guesses for this development as well as KH's intervenor request.
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Last edited by Librarian; 12-03-2014 at 11:46 PM..
  #32  
Old 12-23-2014, 12:40 PM
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Default Briefs supporting en banc request filed 12/23

http://michellawyers.com/guncasetrac...rutavsandiego/

If you have read anything from Brady Campaign, you've already read these.

ETA 12/24

The due date for the briefs has now passed, and the briefs from the parties have all been submitted.

The questions considered by the court will be (probably, as it is what is asked for)
1) should the original (February) decision be revisited en banc?
2) should the (November) decision denying intervenor status to the AG, the Bradys, and the police association be revisited en banc.

There is no schedule.

There is no time limit.

I feel comfortable guessing that the decisions on each of those will be delivered before December 2015 - that is, a year from now - but there really is no good way to guess, so if you want to think they will decide and publish in January, 2015, you might be correct.

If either (1) or (2) is answered "yes", then it seems likely the court will ask for yet more briefings by some set date, and after that would set a date for oral arguments, hear the arguments, and then put us through the waiting game some more.
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Last edited by Librarian; 12-24-2014 at 10:09 PM..
  #33  
Old 03-26-2015, 8:42 PM
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Default 3/26 ordred to en banc rehearing

Order: http://michellawyers.com/wp-content/...rd-En-Banc.pdf

Oral arguments:
Quote:
En banc oral argument will take place
during the week of June 15, 2015,
in San Francisco, California
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  #34  
Old 04-04-2015, 8:16 PM
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http://michellawyers.com/wp-content/...ng-En-Banc.pdf

The Peruta/Gore case has been consolidated with the Richards/Prieto (Yolo County carry case) for the en banc consideration.
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  #35  
Old 04-15-2015, 4:14 PM
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Actual date and time:

2015-06-16 _________ 3:30 pm (ETA - date fixed to match court's published calendar)

Courtroom 1, 3rd Floor Rm 338, James R. Browning U.S. Courthouse, San Francisco - En Banc

Map: http://www.mapquest.com/maps?name=Ja...&zipcode=94103

Mission and 7th.


Case No. Title
10-56971 Edward Peruta v. County of San Diego

Civil S. CA

Time / Side: 30 min

For those who might like to attend:

Decorum is TIGHT - compare to a formal church service. (Lawyers and judges have one set; the rest of us are well advised to be very quiet during the arguments.)

Seating is limited; if they anticipate overflow, they may open a 'viewing room' - last one looked like a conference room with a big TV.

Security is tight - walk-through magnetometer. They WILL NOT check firearms for non-LEO, so do not bring them if you are licensed. They will check pocket knives - I've gotten mine back with no problems.

Frankly, I don't trust their elevator; I walk up and down the stairs. Plan on slightly slippery marble floors.

ETA - Thanks to RobertMW, we now know there is a Youtube challel for the 9th - see
https://www.youtube.com/user/9thcirc/featured
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Last edited by Librarian; 05-14-2015 at 8:35 AM..
  #36  
Old 06-16-2015, 5:12 PM
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If you missed them, or want to watch again, the orals are available on Youtube -
https://www.youtube.com/watch?v=anKfVru1des

And now we wait.

Just as a reminder, there is NO SCHEDULE, NO TIME LIMIT on when a decision from the en banc panel must be issued.
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Last edited by Librarian; 06-16-2015 at 11:15 PM..
  #37  
Old 03-04-2016, 12:00 PM
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(No, no, nothing interesting yet...)

META:

Of course, once there is movement on this, it will be BIG NEWS.

Someone who finds out early should certainly feel free to start a new thread, and likely we/I will close the old one.

But - please, folks, just add to that thread! There's no use having 6 threads on the same topic.

As the old saw used to go, adThanksvance.
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  #38  
Old 06-09-2016, 7:24 AM
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En Banc opinion of 6/9/16 at https://cdn.firearmspolicy.org/wp-co...nc-opinion.pdf
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  #39  
Old 06-09-2016, 10:03 PM
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As noted in February of 2014,
Quote:
[regarding] filing a petition for a writ of certiorari. The deadline for filing such a petition is 90 days from the entry of judgment, ... Supreme Court Rule 13.1
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  #40  
Old 06-25-2016, 11:12 AM
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Request for re-hearing en banc before the full 9th Circuit filed 6/23

See post http://www.calguns.net/calgunforum/s...postcount=7307 in the main Peruta Thread, and the petition http://cdn.ca9.uscourts.gov/datastor...court%20EB.pdf

Quote:
Reasons for Granting Rehearing
I. This Case Is Not, and Has Never Been, About Whether the Constitution Protects a Right to Concealed Carry
II. The Majority’s Decision Conflicts with Second Amendment Decisions from the Supreme Court, This Court, and Other Courts of Appeals
III. The En Banc Majority’s Approach Impermissibly Relegates the Second Amendment to Second-class Status
IV. The En Banc Panel Decision Unnecessarily Intrudes on the Perogatives of the State
Quote:
In reality, this case is not, and has
never been, about whether the Constitution protects a right to
concealed carry. It is about whether the Constitution protects a
right to carry at all. By refusing to answer that question, the en
banc majority effectively refused to resolve the constitutional claims
that Appellants have pressed—namely, whether depriving them of
any outlet for carrying a handgun for self-defense violates the
Second Amendment.
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