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Peruta v. County of San Diego

United States Court of Appeals, Ninth Circuit

November 12, 2014

EDWARD PERUTA; MICHELLE LAXSON; JAMES DODD; LESLIE BUNCHER, DR.; MARK CLEARY; CALIFORNIA RIFLE AND PISTOL ASSOCIATION FOUNDATION, Plaintiffs-Appellants, STATE OF CALIFORNIA, Intervenor-Pending,
v.
COUNTY OF SAN DIEGO; WILLIAM D. GORE, individually and in his capacity as Sheriff, Defendants-Appellees

D.C. No. 3:09-cv-02371-IEG-BGS.

SUMMARY[*]

Civil Rights

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.

Dissenting, Judge Thomas stated that the majority's decision to prevent the State of California from intervening in this case conflicted with controlling circuit precedent and deprived one of the parties most affected by the panel's decision the opportunity to even present an argument on an important constitutional question affecting millions of citizens.

For EDWARD PERUTA, MICHELLE LAXSON, LESLIE BUNCHER, Dr., MARK CLEARY, CALIFORNIA RIFLE AND PISTOL ASSOCIATION FOUNDATION, Plaintiffs - Appellants: Paul Henry Neuharth, Jr., Attorney, Paul Neuharth, Jr. APC, San Diego, CA; Paul D. Clement, Bancroft PLLC, Washington, DC; Carl D. Michel, Esquire, Senior Attorney, Michel & Associates, P.C., Long Beach, CA.

For STATE OF CALIFORNIA, Intervenor - Pending: Gregory David Brown, Esquire, Deputy Attorney General, Ross Moody, Deputy Attorney General, AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL, San Francisco, CA.

For COUNTY OF SAN DIEGO, WILLIAM D. GORE, individually and in his capacity as Sheriff, Defendants - Appellees: James Chapin, Esquire, Senior Deputy County Counsel, OFFICE OF THE COUNTY COUNSEL, San Diego, CA.

For CONGRESS OF RACIAL EQUALITY, Amicus Curiae: Stephen Porter Halbrook, Attorney, Fairfax, VA.

For NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., Amicus Curiae: Paul D. Clement, Bancroft PLLC, Washington, DC.

ALLAN JEROME MAYER, Attorney, Amicus Curiae - Pending, Pro se, San Luis Obispo, CA.

For INTERNATIONAL LAW ENFORCEMENT EDUCATORS AND TRAINERS ASSOCIATION, INDEPENDENCE INSTITUTE, Amici Curiae, David Kopel, Independence Institute, Denver, CO.

For LAW CENTER TO PREVENT GUN VIOLENCE AND MARIN COUNTY SHERIFF ROBERT DOYLE, LEGAL COMMUNITY AGAINST VIOLENCE, MAJOR CITIES CHIEFS ASSOCIATION, ASSOCIATION OF PROSECUTING ATTORNEYS, GEORGE GASCON, San Francisco District Attorney, Amici Curiae - Pending: Simon J. Frankel, Esquire, Attorney, Covington & Burling, LLP, San Francisco, CA.

For SECOND AMENDMENT FOUNDATION, INC., CALGUNS FOUNDATION, INC., ADAM RICHARDS, BRETT STEWART, Amici Curiae: Alan Gura, Gura & Possessky, PLLC, Alexandria, VA.

For CENTER FOR CONSTITUTIONAL JURISPRUDENCE, DOCTORS FOR RESPONSIBLE GUN OWNERSHIP, LAW ENFORCEMENT ALLIANCE OF AMERICA, Amici Curiae: John C. Eastman, THE CLAREMONT INSTITUTE CENTER FOR CONSTITUTIONAL JURISPRUDENCE, Orange, CA.

For THE GUN OWNERS OF CALIFORNIA, H. L. RICHARDSON, Senator (Retired), Amici Curiae: Don Kates, Michel & Associates, P.C., Long Beach, CA.

For BRADY CENTER TO PREVENT GUN VIOLENCE, INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, POLICE FOUNDATION, Amici Curiae: Neil R. O'Hanlon, Esquire, Attorney, Hogan Lovells U.S. LLP, Los Angeles, CA.

For CALIFORNIA PEACE OFFICERS ASSOCIATION, CALIFORNIA POLICE CHIEFS ASSOCIATION, CALIFORNIA STATE SHERIFF'S ASSOCIATION, Amici Curiae: Paul R. Coble, Esquire, Attorney, JONES & MAYER, Fullerton, CA.

Before: Diarmuid F. O'Scannlain, Sidney R. Thomas, and Consuelo M. Callahan, Circuit Judges.

Page 571

ORDER

We must rule on motions to intervene in this Second Amendment case which were filed after our opinion and judgment reversing the District Court were filed.

Page 572

I

When Sheriff William D. Gore declined to file a petition for rehearing en banc in this case, the State of California and the Brady Campaign to Prevent Gun Violence moved to intervene under Federal Rule of Civil Procedure 24. The California Police Chiefs' Association (CPCA) and the California Peace Officers' Association (CPOA), amici in this case, submitted a petition for rehearing en banc. However, amici cannot file petitions for rehearing en banc. See Day v. Apoliona, 505 F.3d 963, 964 (9th Cir. 2007). We therefore construe CPCA and CPOA's petition as a motion to intervene. See CPCA & CPOA Pet. for Reh'g En Banc at 2 n.2 (" To the extent the Court finds that CPCA and CPOA must be a party in order to submit this petition, CPCA and CPOA request that this Court construe this petition to also be a request to intervene as parties." ).

II

Intervention, both of right and by permission, can occur only " [o]n timely motion." Fed.R.Civ.P. 24(a)-(b). Timeliness is determined with reference to three factors: " (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay." United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (quoting Cal. Dep't of Toxic ...


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