CCW CASE TO BE REHEARD BY “EN BANC” PANEL
On March 26, 2015, the full Ninth Circuit U.S. Court of Appeal voted to have an “en banc” rehearing (11 justices of the Court) of the case of Peruta v. County of San Diego. Previously, a three judge panel split 2 – 1 and held that California’s law requiring articulation of specific “good cause” to secure a permit to carry a concealed weapon in public was an unconstitutional infringement on the Second Amendment’s right to keep and bear arms.
JONES & MAYER, as counsel to the California Police Chiefs’ Association (CPCA), the California Peace Officers’ Association (CPOA), and the California State Sheriffs’ Association (CSSA) had participated as amicus curiae in the original case of Peruta v. County of San Diego at the request of the San Diego County Sheriff, Bill Gore. After the Ninth Circuit’s decision, the County and the Sheriff chose to not pursue the matter further (eg. asking for en banc rehearing) and, as a result, CSSA also withdrew from the matter.
However, CPCA and CPOA voted to continue in the case and, on their behalf, we filed a motion to intervene, which was denied, again on a 2 – 1 vote. At that time, however, the full Ninth Circuit invited us to submit a brief addressing the question of whether there should be an en banc rehearing? That was done and the full Ninth Circuit has now ruled that a rehearing will take place.
The Court issued, in part, the following two orders:
Filed Order for PUBLICATION (SIDNEY R. THOMAS) Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition shall not be cited as precedent by or to any court of the Ninth Circuit.
Filed Order (SIDNEY R. THOMAS) En banc oral argument will take place during the week of June 15, 2015, in San Francisco, California. The date and time will be determined by separate order.
HOW THIS AFFECTS YOUR AGENCY
There have been differences of opinion as to the effect of the full Ninth Circuit’s action following the 2 – 1 decision by the three judge panel. Some are of the opinion that the decision was “stayed” at that time and others disagreed. However, there is no disagreement now – the lower court ruling, that requiring “good cause” for a CCW permit was unconstitutional, has been vacated. As the full court states in its order: “The three-judge panel disposition shall not be cited as precedent by or to any court of the Ninth Circuit.”
Each police chief and sheriff can continue to exercise discretion in deciding, within their own jurisdictions, whether or not an applicant has articulated “good cause” to secure a permit to carry a concealed weapon in public. Obviously, as with all legal issues, it is important to seek out and secure advice and guidance from your agency’s legal counsel.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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