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San Diego Sheriff will not seek 9th Circuit en banc in Peruta right to carry case.
The Washington Post.com ^ | 2-21-14 | David Kopel

Posted on 02/21/2014 11:08:26 PM PST by 444Flyer

Late this afternoon, the San Diego County Sheriff’s Office issued a press release announcing that it will not seek en banc review of the Peruta decision, which was issued last Friday by a 2-1 panel of the Ninth Circuit. As I detailed in a post last week, Peruta requires that the exercise of the Second Amendment right to carry a licensed firearm for lawful self-defense be considered “good cause” under the California statute providing for the issuance of concealed carry permits.

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

As the press release notes, a federal Circuit Court has the authority to conduct an en banc rehearing sua sponte. According to the Federal Rules of Appellate Procedure, Rule 35(a): “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 by the court of appeals en banc.” For the Ninth Circuit to vote on a rehearing would require a judge to call for a vote. F.R.A.P. Rule 35(f).

(Excerpt) Read more at washingtonpost.com ...


TOPICS: News/Current Events
KEYWORDS: banglist; peruta
"...Assuming that there is no certiorari petition in Peruta, and no sua sponte en banc, things will continue as usual in the California counties that were already issuing carry permits in compliance with the principles that the Second Amendment includes the right to bear arms. Other counties–such as Los Angeles, Orange, and San Francisco–will have to follow San Diego’s lead and begin issuing permits to ordinary, law-abiding citizens who pass the requisite background checks and safety training requirements..."
1 posted on 02/21/2014 11:08:26 PM PST by 444Flyer
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To: 444Flyer

Mr. Bloomberg, please pick up the white courtesy phone.


2 posted on 02/21/2014 11:10:08 PM PST by 2ndDivisionVet (I will raise $2M for Sarah Palin's next run, what will you do?)
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To: 2ndDivisionVet

LOL


3 posted on 02/21/2014 11:13:34 PM PST by 444Flyer (How long O LORD?)
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To: 444Flyer

The anti-gun left will be increasing the pressure on Barry to do something with his pen or his phone to protect them from all those evil California gun owners who will want to exercise their right to carry.


4 posted on 02/21/2014 11:16:28 PM PST by South40 (Liberalism is a Disease)
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To: 444Flyer

You are using Latin; the “forbidden language” of the American System. Have you studied for The Bar? I recall hearing that JFK jr had to take that test (at least) four times before he “got a passing grade”. You noticed I didn’t say he actually passed the test. I was still impressed that he was ambitious enough to try.


5 posted on 02/22/2014 12:21:32 AM PST by lee martell
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To: 444Flyer

NOTHING IS GOING TO CHANGE AND NO FLOOD OF PERMITS ARE GOING TO BE APPROVED.....and this is why.

Ca Penal Code Section 12050

12050. (a) (1) (A) The sheriff of a county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E), may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person in either one of the following formats:

The Subsections to this article address other issues but
Paragraph A is the guiding directive. The KEY word in this
paragraph is the word “MAY”....the code says the chief LEO
“MAY” issue a permit. It does not say “SHALL”. All the
9th circus courts ruling did was to delete the phrase regarding “good cause” from this code. It does not change
the word “MAY” to “SHALL”. Only the legislature can make that change. Unless and until such a change IS made, and that is VERY unlikely California remains a “MAY ISSUE” state not a “SHALL ISSUE” state. That means that the decision to issue or not issue is at the SOLE discretion of
the chief LEO involved. The recent court decision ONLY means that said LEO may not use the phrase regarding “good
cause” as a reason to refuse to issue. He can still refuse
to issue a permit....and he isn’t required to give a reason.


6 posted on 02/22/2014 12:25:20 AM PST by nvscanman
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To: nvscanman

Good legal analysis of the decision, but it does give CCP applicants a “cause celebre” to take to the State Assembly, using the 9th Circuit’s decision as a supporting element in clarifying the existing Code Section of 12050.

Given that the decision came from the Nutty Ninth, it was an impressive victory for our side. If the Leftists in the Assembly keep the law from being changed, it pits them against their one-time top legal ally in the state.

Our side has got to be smarter and more aggressive in keeping the California Left in check, at all levels. Good legal teams will ensure that we can cause the Left a boatload of trouble, as considerable cost and time loss to them.

The momentum has temporarily swung to our side on the CCP issue, so let’s not drop the ball thinking that we have won the war. NVSCANMAN has done us all a great favor by pointing out the limits of the court’s decision and what must be done to correct it.

Hats off to him/her.


7 posted on 02/22/2014 1:18:07 AM PST by MadMax, the Grinning Reaper
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To: nvscanman

Good legal analysis of the decision, but it does give CCP applicants a “cause celebre” to take to the State Assembly, using the 9th Circuit’s decision as a supporting element in clarifying the existing Code Section of 12050.

Given that the decision came from the Nutty Ninth, it was an impressive victory for our side. If the Leftists in the Assembly keep the law from being changed, it pits them against their one-time top legal ally in the state.

Our side has got to be smarter and more aggressive in keeping the California Left in check, at all levels. Good legal teams will ensure that we can cause the Left a boatload of trouble, as considerable cost and time loss to them.

The momentum has temporarily swung to our side on the CCP issue, so let’s not drop the ball thinking that we have won the war. NVSCANMAN has done us all a great favor by pointing out the limits of the court’s decision and what must be done to correct it.

Hats off to him/her.


8 posted on 02/22/2014 1:18:07 AM PST by MadMax, the Grinning Reaper
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To: nvscanman

I think maybe that case turned actually on that word “may.” It was against the sheriff but if the “may” is struck down in San Diego it can hardly stand anywhere else in the 9th Circuit.


9 posted on 02/22/2014 4:34:03 AM PST by arthurus (Read Hazlitt's Economics In One Lesson ONLINEhttp://steshaw.org/economics-in-one-lesson/)
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To: arthurus

In order for Kali to go from “may issue” to “shall issue”
the legislature would have to change the penal code from
“may” to “shall”. A court ruling such as this can strike
down an undue burden like “good cause” however to think
this ruling changes the actual law is not how the legal process works.


10 posted on 02/22/2014 5:10:05 AM PST by nvscanman
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To: nvscanman

I disagree with your analysis.

The opinion clearly states that an ordinary person must be able to carry. If this stands, the opinion makes CA a “must issue” state rather than “shall issue”.

Now exactly what is the practical difference there?


11 posted on 02/22/2014 6:09:12 AM PST by CurlyDave
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To: lee martell

Don’t know if you were being facetious or not, but, as I have no knowledge of legal terms, I looked up “no sua sponte en banc”. Here is what I found.

En Banc(1.):
(In the bench. Full bench.) Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. When the issues involved are unusually novel or of wide impact, the case will be heard and decided by the full court sitting en banc.

Sua sponte (1.):
Of his or its own will or motion; voluntarily; without prompting or suggestion.

Source: http://clarit.home.mindspring.com/glossary.htm#e


12 posted on 02/22/2014 6:17:01 AM PST by Bigg Red (O LORD, our Lord, how majestic is your name in all the earth! Ps 8)
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To: 2ndDivisionVet

GOP Governor Candidate Speaks Out Against “Assault Rifles” and “Full Capacity Magazines”

February 21 2014
by Dan Cannon

Share This Post

I’ve always said don’t just vote party lines if you want to protect your gun rights. There are some moderate Democrats, especially in state legislatures, who have been great friends to the Second Amendment. Likewise, there are Republicans who just about as anti-gun as you can be.

Case in point, California Governor Candidate Neel Kashkari made some disturbing comments about the Second Amendment.

According to SacBee,

“If you’re a single issue voter, and you just want someone to give you a full capacity assault rifle magazine, God bless you, you can go vote for somebody else,” Kashkari told a group of college Republicans at California State University, Sacramento. “I’m not your guy.”

“I do know philosophically that I deeply believe in protecting my own gun rights, and that means protecting your gun rights,” Kashkari said. “But I also believe that, you know, we need to be reasonable about things.”

Kashkari spoke broadly against “layering more gun rules on me, on responsible gun owners,” saying additional restrictions will not prevent gun violence or make people safer. But the former U.S. Treasury Department official said he does not oppose waiting periods or background checks, which he said “didn’t inconvenience me in the slightest” when he has purchased guns.

Keep in mind, this is supposed to be the conservative choice for California governor!

Kashkari has been taking a serious beating on his Twitter account, and to his credit he seems to be responding personally to most of the concerns. Although, I don’t think he’s really helping himself.

@2BPatriotic I was responding to a student question. He wanted me to say I would roll back all gun laws. #nope

— Neel Kashkari (@neelkashkari) February 21, 2014

@Shadowsbesideme yes, I am a gun owner myself and will defend all our rights

— Neel Kashkari (@neelkashkari) February 21, 2014

I’m really concerned about the future of California, which I fear before was already too far gone. Now that the so called “conservative” ballot options in that state are also becoming anti-gun I simply don’t know how California residents take back their state.

Despite what Kashkari says, in my opinion, and I’m pretty sure the opinion of most gun owners, supporting waiting periods, banning certain types of weapons, and magazine limits mean that you DO NOT support the Second Amendment. Period. It’s that simple.

Image Credit: Neel Kashkari Twitter Account

http://gunssavelives.net/politics/gop-governor-candidate-speaks-out-against-assault-rifles-and-full-capacity-magazines/


13 posted on 02/22/2014 6:24:59 AM PST by KeyLargo
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To: 444Flyer

Lawmen can sometimes be a bit more commonsensical about such things. Especially when they get a chance to their peers about it. I bet he talked to a few other sheriffs and they gave him “the solid and right on” about it.


14 posted on 02/22/2014 9:18:39 AM PST by yefragetuwrabrumuy (WoT News: Rantburg.com)
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To: South40
The anti-gun left will be increasing the pressure on Barry to do something with his pen or his phone to protect them from all those evil California gun owners who will want to exercise their right to carry.

Of course they will, but they are powerless in the face of the majority of Americans who will go to the ballot box this fall.

15 posted on 02/22/2014 9:33:25 AM PST by Balding_Eagle (Over production, one of the top 5 worries for the American Farmer every year.)
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To: Bigg Red

To be honest, I wasn’t joking. You had me accepting those words as authentic. Hah. Some people (like me) are easily mystified when it comes to knowing the law.


16 posted on 02/22/2014 9:47:24 AM PST by lee martell
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To: nvscanman
nvscanman said: "The recent court decision ONLY means that said LEO may not use the phrase regarding “good cause” as a reason to refuse to issue. "

While what you say is technically true, I don't think it is practical. The District Courts will be bound by a precedent which is worded in such a way that no discretion will be permitted for law-abiding adults.

This means that a person who is denied for any other reason which would not pass Constitutional muster should be a shoe-in for the same summary judgement which has been ordered in the Peruta case.

Law firms with some time to sell ought to be willing to sue, asking for the expenses to be covered by the reluctant Sheriff in question. If the District Courts do what they ought to do, this would be practically free money.

I believe that the anti-gunners would rather wait than have this issue decided by the present Supreme Court. They would rather hope for the chance that Obama will get to appoint a replacement for one of the Heller five.

It's in the interests of we who support the right to keep and bear arms to absolutely flood the lower courts so as to get this case or one sufficiently similar before the present Supreme Court.

17 posted on 02/22/2014 10:38:28 AM PST by William Tell
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To: William Tell

While the decision is a step in the right direction
it does not force a sheriff to issue. It does
remove the undue burden of “good cause” and gives people
who wish to resort to legal action an additional precedent
in their favor. However the ruling does not remove that
one all important word from the penal code....”may”.

If a sheriff denies a permit and gives a reason that is
vague, broadly worded etc. an appeal such as the one under discussion may successfully remove that impediment.

However if a sheriff merely denies the application without
stating a reason an applicant would have to sue to force
a precedent requiring a valid reason for denial. Until
such a precedent is set a sheriff merely has to say NO....
and not one word more.

I have no doubt that time will show that nothing of any substance has changed. Not until further court actions
take place and further rulings are made that give further
directions to a sheriff directing them to approve applications unless he can come up with a good reason for
denial. I have zero faith that the legislature will change
the wording of the law to “shall”....they may not even be bothered to remove the phrase “good cause” regardless of this ruling.


18 posted on 02/22/2014 6:37:34 PM PST by nvscanman
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To: nvscanman
nvscanman said: "However if a sheriff merely denies the application without stating a reason ..."

I think you are completely underestimating the strength of a court decision recognizing a fundamental, individual, enumerated right.

Here's the order from the Ninth Circuit:

The district court erred in denying the applicant’s motion for summary judgment on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.
REVERSED and REMANDED."

ANYTHING which impermissibly infringes is now subject to attack using this decision as a precedent. You will no longer have to prove that it's an individual, fundamental, enumerated right to bear arms ready for use in a confrontation in public.

This most definitely shifts the burden to the Sheriff to justify ANY infringement. If what you said is true, then the San Diego Sheriff could merely state, "I refuse to issue to Peruta and I won't say why". That won't cut it.

He could try to say, "I won't issue to Peruta because I don't believe that he exhibits "GOOD MORAL CHARACTER". The judge in such a case should similarly apply Peruta and grant summary judgement in such a case. Where would the state get the authority to decide that people they consider immoral don't have a Second Amendment right to defend themselves?

I doubt that even the training requirement can stand muster. It's simply not in the Second Amendment and several states get along quite well without such an infringement. If a case can be made that there is a compelling reason to require training, then the state can jolly well provide it. I don't see that happening.

My prediction is that the anti-gunners will STALL as long as possible, but here in Kalifornia the strategy that serves New York, New Jersey, and Maryland well is a huge loss for them in Kalifornia, and vice versa.

Peruta might be appealed but I doubt it enough that I filed for my permit this morning. If we need an immediate case to be filed in my county, I will be ready.

19 posted on 02/24/2014 2:20:06 PM PST by William Tell
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To: lee martell

Not sure what you mean by “authentic”, but what I was just sharing with you what I learned when I looked up the legal terms.


20 posted on 02/24/2014 3:07:34 PM PST by Bigg Red (O LORD, our Lord, how majestic is your name in all the earth! Ps 8)
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To: William Tell

The courts ruling specifically stated that permits were
being denied and the reason stated was the applicant did
not show “good cause”. The 9th shot down that one single
reason and that is ALL that this ruling does. It will
require further legal appeals and activity to further
widen any changes to the current Penal code statute that
still states “MAY” issue.


21 posted on 02/24/2014 4:29:36 PM PST by nvscanman
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To: nvscanman
nvscanman said: "The 9th shot down that one single reason and that is ALL that this ruling does. "

Can you point out any prior case with precedential value in the Ninth Circuit which establishes that bearing arms outside the home is an individual, fundamental, Constitutionally protected right which cannot be infringed? Isn't that what this case does? If not appealed, won't this case be BINDING on all federal circuit courts within all the western states which are within the jurisdiction of the Ninth Circuit?

Recognize that the reason for the ruling is not "dicta", it is essential to the ruling and lower courts are not free to ignore it.

What would justify a federal district court in this circuit simply deciding that "good moral character" need only meet a "rational basis" in order to be enforceable? They can't. Even if a total ban is not at issue, it doesn't mean the state gets a free ride. Factors which are less than a total ban would then involve deciding what level of scrutiny the state must meet.

Even the issue of whether a total ban is involved is not a cinch for the Sheriff. The Peruta decision points out that the issue is not whether somebody gets a permit, but whether everyone who should get a permit, gets one.

The fact that any Sheriff can ignore the consequences of Peruta doesn't mean that Peruta has no such consequences.

You need to explain how a district court can decide a case involving concealed carry without considering the Peruta decision. Such a court MIGHT ignore Peruta. That is not the issue. The issue is; would a court be justified in ignoring Peruta?

Let's put the question another way? What justification do you personally see for a Sheriff to be able to judge the "good moral character" of a person before deciding whether to issue a permit? Perhaps you and I disagree on this point and that is why you don't see the strength of Peruta.

22 posted on 02/25/2014 9:24:47 AM PST by William Tell
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To: 444Flyer

BTTT!


23 posted on 02/25/2014 11:31:50 AM PST by neverdem (Register pressure cookers! /s)
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To: William Tell

Lets not confuse what a court says with what a sheriff
may or may not do. The 9th’s decision stated that
“good cause” was not a basis that could be used to decide
whether or not permit would be issued. The ruling did not
instruct the sheriff to issue unless a reason to deny could
be found and the law grants the sheriff the discretion to
issue, it does not require him to issue. This decision
is not a directive to the sheriff...it is a decision that
removes strikes down the “good cause” portion of Penal Code
section 12050. The “good moral character” requirement is still in place...and is still subjective and the requirement for specified training is still in place.
Some jurisdictions may issue more permits now than in the
past based on this decision....I suspect that most will not.
HOW they decide to proceed is up in the air as this code
still grants the sheriff full discretion to issue or not.

The “reasonable restrictions” on where and how carry may
occur is also another point that will likely be contended
in court at some time.

This decision in no way changed the political landscape in
Kali regarding permits. Those sheriffs that issued them
for reasonable purposes will continue to do so and those
who looked for reasons to refuse still have verbage in
the code that allows them to deny or restrict as THEY choose. This issue is far from settled. The ruling is
a step in the right direction but THAT IS ALL IT IS...
a step.


24 posted on 02/25/2014 5:52:48 PM PST by nvscanman
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