California moving one step closer to ‘shall-issue’?

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A federal appeals court ruling on Wednesday may have brought the Golden State one step closer to a statewide ‘shall-issue’ concealed carry standard.

A three-judge panel for the U.S. 9th Circuit Court of Appeals ruled that Attorney General Kamala D. Harris could not intervene in a case that struck down San Diego’s ‘may-issue’ standard, which gave chief law enforcement officers discretion when issuing concealed carry permits to law-abiding applicants.

Under California law, each county has the power to create its own CCW issuing standard, but following the challenge of this state law by lead pro-gun plaintiff Edward Peruta, that’s no longer the case. It appears ‘shall-issue’ is the new baseline. This was first decided back in February when the same three-judge panel made the initial ruling. Following the ruling, Harris argued that her office had a say in the matter since it didn’t just effect San Diego county, but the entire state. Wednesday’s ruling confirmed that Harris waited too long to get involved and cannot intervene.

“Considering each of the relevant factors, we conclude that the movants have not met the heavy burden of demonstrating ‘imperative reasons’ in favor of intervention on appeal,” said the panel, in it’s 2-1 decision.

Yet, the attorney general will have an opportunity to appeal the latest decision and request an ‘en banc’ review which is equivalent to asking the entire Ninth Circuit to review the case instead of just a three judge panel.

So far, Harris has not said what her office will do. Legal experts predict that this battle is far from over.

“There is a long way to go before this is settled.” said UCLA law professor Adam Winkler, who authored the book “Gunfight: The Battle over the Right to Bear Arms in America.”

{ 2 comments… add one }
  • Mark N. November 14, 2014, 12:27 am

    Most of the article is not accurate. So to clarify, let’s start with the California CCW law. California is a “may issue” state, which means that the issuing agency (usually the county sheriff but also some city police departments) exercise discretion in determining whether the applicant meets the state standard of showing “good cause” and “good moral character.” What “good cause” means varies widely from county to county, from a very strict standard of showing an immediate threat of harm that cannot be dealt with by the police (i.e. verified threats) or occupations that expose the applicant to a higher risk of harm (e.g. persons who carry large sums of cash for business purposes) to essential “shall issue” or self defense. San Diego was one of the stricter counties, while LA and San Francisco are among the strictest (essentially no issue). In Peruta, the Ninth Circuit panel held that in exercising its discretion under the California Penal Code, the IA had to consider self defense to be “good cause.” Sheriff Gore at that point decided he’d had enough, and agree to accept self defense once the decision became final. (It still isn’t final.) The California AG sought to intervene so as to become a party for the purpose of seeking en banc review by a larger (13 member) appellate panel. The denial of her motion to intervene means that at least in Peruta, there is no pending petition for en banc review, and no party who wishes to seek Supreme Court review. The only possible was that this case will not become final within the next week is if the AG petitions for an en banc review of the denial of her motion to intervene, IF that petition is granted, and IF she is granted leave to intervene by the en banc panel, THEN and ONLY THEN will her petition for en banc review of the decision itself be ripe for consideration. It is entirely premature to speculate as to whether we will ever get to that point, and what might happen if we do. The AG could also ask the Supreme Court to review the denial of her motion to intervene, but generally speaking, the Supreme court is extremely unlikely to consider such a request.
    Leaving aside Peruta, there is another avenue of en banc or Supreme Court review of the Peruta decision. There is a companion case out of Yolo County called Richards v. Prieto that applied Peruta against the Sheriff of Yolo County. However, Sheriff Prieto has vowed that he will take the case all the way to the Supreme Court if he has to, and he HAS timely filed a petition for en banc review that is still pending before the panel that decided his case (which just so happens is the same panel that decided Peruta). If his petition is denied, then any other justice of the Ninth Circuit can sua sponte request en banc, which can only be granted if a majority of the justices vote to hear the case. If the petition is graned, there is no telling what will happen, given the liberal majority on the Ninth Circuit bench. If that is turned down, then Sheriff Prieto can petition for review by the Supreme Court.

    Is that clear?

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