The three judge panel of the Ninth Circuit U.S. Court of Appeals, which decided the Peruta case, has, finally after more than nine months, ruled on the applications from the State, the Brady Center, and CPCA and CPOA to intervene in the action, and denied all the motions.

The denial of the motions by the Court was a 2-1 ruling, as was the original decision: “The State of California’s Motion to Intervene is DENIED. The Brady Campaign’s Motion for Leave to Intervene is DENIED. CPCA and CPOA’s Petition for Rehearing En Banc, construed as a motion to intervene, is DENIED.”

In particular, the Court said that the State of California and the Brady Center delayed petitioning for intervention and their reasons for the delay are not persuasive.  “The stage of the proceedings, the length of the delay, and the reason for the delay all weigh against timeliness.  In the absence of a timely motion, intervention is unavailable.”

As to CPCA and CPOA, they did not delay participation since they were amici in the underlying case but, since amici are not parties, they could not petition for an en banc review (that can only be done by a party).  However, the Court treated the motion filed by CPCA and CPOA as one to intervene, and denied that, as well.

[Please go to the Jones & Mayer website, www.Jones-Mayer.com, to access our Client Alert Memo, February 14, 2014, Vol. 29 No. 5 – “Ninth Circuit Invalidates California’s ‘Good Cause’ Requirement for Issuance of CCW,” for details on the history of this case.]

Court Staff’s Summary

The full Order of the Court (including the dissent) is approximately 20 pages and goes into detail setting forth the majority’s reasoning for the denial of the motions.  A portion of the Court’s staff summary* is as follows:

“The panel denied motions to intervene, which were filed after the panel’s opinion and judgment holding that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.  The State of California and the Brady Campaign to Prevent Gun Violence moved to intervene under Federal Rule of Civil Procedure 24 after San Diego Sheriff William D. Gore declined to file a petition for rehearing en banc. The California Police Chiefs’ Association and the California Peace Officers’ Association, amici in this case, submitted a petition for rehearing en banc. Noting that amici cannot file petitions for rehearing en banc, the panel construed the petition as a motion to intervene.”

“The panel held that the movants did not meet the heavy burden of demonstrating imperative reasons in favor of intervention on appeal. Noting that the movants sought intervention more than four years after the case began, the panel stated that the stage of the proceedings, the length of the delay, and the reason for the delay all weighed against timeliness. In the absence of a timely motion, intervention was unavailable.”

“The panel further concluded that 28 U.S.C. § 2403 and Federal Rule of Civil Procedure 5.1 did not provide a basis for intervention because the panel’s opinion never drew into question the constitutionality of any California statute, but only questioned San Diego County’s exercise of regulatory authority under the relevant state statutes, specifically the County’s policy that an assertion of self defense is insufficient to demonstrate “good cause” under the California statutory scheme.”

[* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.]


The dissent disagreed with the majority’s conclusion that “the panel’s opinion never drew into question the constitutionality of any California statute.” The dissent stated “that [whether] the opinion primarily addressed state regulation of handguns could hardly be clearer” and, therefore, intervention by California should have been permitted.  The dissent also stated that it would grant the right to intervene to the Brady Center and CPCA and CPOA, as well.

The dissent notes that, in the majority’s opinion, it states that “we must assess whether the California scheme deprives any individual of his constitutional rights.” (Emphasis in original.)

“Given the majority’s opinion, the statutory command on intervention is direct. If the constitutionality of a state statute is drawn into question, the state must be afforded the opportunity to intervene.”

The dissent notes, further, that “because the County has elected not to pursue a petition for rehearing en banc, no existing party can adequately represent California’s interests.”


The issue of whether the State, the Brady Center, and/or CPCA and CPOA can intervene in the case has been settled – they cannot.  However, the issue of whether or not the full Ninth Circuit will review the case en banc remains unanswered.  The full court can accept a case for en banc review even if none of the parties make such a request – only time will answer that question.

The majority notes that, “Peruta’s challenge is only to the San Diego County policy that ‘an assertion of self defense is insufficient to demonstrate ‘good cause’ under the California statutory scheme.” Nonetheless, if any other city or county also requires something more than an assertion of self defense, it is logical to assume that the same challenge would be brought forward and this decision cited as precedent.

In light of that, it is imperative that each agency secure advice and guidance from its legal counsel in establishing criteria for the issuance of a CCW permit.

As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.