James Ching - Law.com article on the motion to intervene in Peruta

As usual, James Ching does a good job explaining legal babble, this time he takes on the denial of AG Harris' motion to intervene and does so in plain English accompanied by a half dozen or so useful links at the bottom of the article.

The article does require one to sign up for a "free trial" which permits one to read a limited number of articles for free each month (five as I recall).

"Also, nothing bars the Circuit from ordering en banc hearing on its own. “The rule is addressed to the procedure whereby a party may suggest the appropriateness of convening the court in banc. It does not affect the power of a court of appeals to initiate in banc hearings sua sponte.” (Notes of Advisiory Comm. on Rules-1967, Rule 35 FRAP)

The parties may request en banc hearing, but whether or not they do, Rule 35 states that a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard when en banc consideration is necessary to secure or maintain uniformity of the court’s decisions or the proceeding involves a question of exceptional importance.

Finally, the Sheriff, given his ambivalence to litigating the appeal thus far, could, after the above options are exhausted, decline to pursue the case in the Supreme Court, in which case Peruta would have the status of a singular but not definitive Circuit Court opinion."


http://www.law.com/sites/jamesching/2014/11/13/ninth-circuit-denies-intervention-to-ag-in-peruta-ccw-permit-case

The denial of intervention is only a small victory. I doubt the 9th will bother any more with Peruta since the sheriff is basically out, but the sheriff in Richards has asked for en banc, and just might get it. That would pretty much sink everything.

press1280 said:

The denial of intervention is only a small victory. I doubt the 9th will bother any more with Peruta since the sheriff is basically out, but the sheriff in Richards has asked for en banc, and just might get it. That would pretty much sink everything.

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Ironically, had AG Harris ever bothered to read the California Constitution she might have discovered that she had the power to order Sheriff Gore to file an en banc appeal and has the power to order Sheriff Gore to file a cert petition to SCOTUS.

Interesting. Tell us more.

California Right To Carry said:

Ironically, had AG Harris ever bothered to read the California Constitution she might have discovered that she had the power to order Sheriff Gore to file an en banc appeal and has the power to order Sheriff Gore to file a cert petition to SCOTUS.

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Please tell us more. I did not realize that she had this power.

ccwinstructor said:

Please tell us more. I did not realize that she had this power.

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Article V, Section 13 of the California Constitution. This is why the AG is referred to as California's "Top Cop." The AG also has the power of every DA in the state and if she doesn't like the way a particular DA is prosecuting the case, she can take the case out of his hands.

California Right To Carry said:

Ironically, had AG Harris ever bothered to read the California Constitution she might have discovered that she had the power to order Sheriff Gore to file an en banc appeal and has the power to order Sheriff Gore to file a cert petition to SCOTUS.

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She doesn't bother to read the US Constitution, why would she read California's?

California Right To Carry said:

Ironically, had AG Harris ever bothered to read the California Constitution she might have discovered that she had the power to order Sheriff Gore to file an en banc appeal and has the power to order Sheriff Gore to file a cert petition to SCOTUS.

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California Right To Carry said:

Article V, Section 13 of the California Constitution. This is why the AG is referred to as California's "Top Cop." The AG also has the power of every DA in the state and if she doesn't like the way a particular DA is prosecuting the case, she can take the case out of his hands.

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This STILL does not make her a party to the lawsuit nor enable her to command Sheriffs to pursue legal remedies such as an appeal. It is misinformed assertions like these, that raise doubts about your legal theories and capacity in pursuing carry rights in California.

ConditionThree said:

This STILL does not make her a party to the lawsuit nor enable her to command Sheriffs to pursue legal remedies such as an appeal. It is misinformed assertions like these, that raise doubts about your legal theories and capacity in pursuing carry rights in California.

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I was wondering how long it was going to be before we heard from someone at CalGuns.nuts. You attack Open Carry all the time in the CalGuns forum and then you come here pretending to be a supporter of Open Carry.

You aren't fooling anyone.

If you don't like my Open Carry lawsuit then file your own. As the saying goes, put up or shut up.

California Right To Carry said:

I was wondering how long it was going to be before we heard from someone at CalGuns.nuts. You attack Open Carry all the time in the CalGuns forum and then you come here pretending to be a supporter of Open Carry.

You aren't fooling anyone.

If you don't like my Open Carry lawsuit then file your own. As the saying goes, put up or shut up.

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Why would I attack open carry if I both support open carry and were the first advocate (ALA pioneer) on this forum to document my open carry activities? I'm sure you have at least ONE instance where I have undermined the advocacy of open carry either here or elsewhere to prove your contention. Cite one, Charles. (Links and screen-caps are acceptable proof.)

And back to the subject at hand; If Kamala Harris as Attorney General, could Constitutionally order Sheriffs around and demand they pursue legal issues against the desires of their constituency (and at their expense), why would Sheriffs be elected at all? Wouldn't it be a political misadventure of epic proportions if the Attorney General commanded a Sheriff to exhaust the county budget on a litigious crusade that would only benefit the Attorney General's goals, while at the same time offending the Sheriff's constituents to the degree that they would recall their elected law enforcement official? What you claim is utter nonsense.

ConditionThree said:

And back to the subject at hand; If Kamala Harris as Attorney General, could Constitutionally order Sheriffs around and demand they pursue legal issues against the desires of their constituency (and at their expense), why would Sheriffs be elected at all? Wouldn't it be a political misadventure of epic proportions if the Attorney General commanded a Sheriff to exhaust the county budget on a litigious crusade that would only benefit the Attorney General's goals, while at the same time offending the Sheriff's constituents to the degree that they would recall their elected law enforcement official? What you claim is utter nonsense.

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The answers to your questions are found in the Constitution of the State of California and the history of the Constitution as to why the framers thought it was important to make Sheriff's and District Attorneys subordinate to the Attorney General and the Attorney General, in turn, subordinate to the Governor. I've already cited the relevant Constitutional provision.

But let us return to the question of Open Carry and your criticizing my Open Carry lawsuit the legal proceedings to which you are incompetent to comment on let alone your lack of competence to pursue an Open Carry case on your own.

After nearly two and a half years of litigation the district court in my case issued a final judgment concluding: that there is no right to carry a loaded firearm even in one's home, or a right to openly carry an unloaded firearm even in one's home; that firearms fall outside the scope of Fourth Amendment protections even in the home; that Second Amendment equal protection challenges are subject to rational basis review even in the home, and that minorities are prohibited from bringing pre-enforcement challenges to criminal laws.

For me to lose on appeal the 9th Circuit will have to overturn decades of US Supreme Court and 9th Circuit precedents. If ever there were a case for SCOTUS to grant cert in its is mine because not only I am arguing exactly what SCOTUS held in Heller, I extensively argued a 14th Amendment equal protection claim based on race.

Attorney General Harris argued that the Second Amendment condones racially discriminatory criminal laws and therefore the 1967 Black Panther Ban is Constitutional. My appeal opens with that. Even if I get three far left Obama judges assigned to my case, that is going to be a difficult defense for them to swallow.

If I lose then my loss creates a split with every single Federal Circuit as well as creating a split with every single state appellate court including California's on so may layers.

Think you can do better? Then go file your own lawsuit and get back to us when you succeed. Until then, keep your virtual feces to yourself.

I remember clearly certain Cal-gun people saying not to OC and blaming OCers for the anti OC law. And advocating that individuals not sue but way for the gun organizations..........yea that worked well.