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

[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).

[nvscanman]

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.

[William Tell]

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.

[neverdem]

BTTT!

[nvscanman]

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.