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Media Alerts - Edward Peruta, et al v. County of San Diego - Ninth Circuit
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December 6, 2014
  Edward Peruta, et al v. County of San Diego - Ninth Circuit
Headline: Ninth Circuit denies motion to intervene from a judgment holding that responsible law-abiding citizens have a right under the Second Amendment to carry a firearm in public for self-defense

Areas of Law: Constitutional Law, Civil Procedure

Issues Presented:
. Whether by challenging a county's exercise of regulatory authority that is based on a state's statute the statute itself is also challenged?
. When must an interested party move to intervene?
. What is required to justify granting motions to intervene?

Brief Summary: After the San Diego Sheriff declined to file a petition for rehearing en banc from an 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 (FRCP 24). The California Police Chiefs' Association (CPCA_ and the California Peace Officers' Association (CPOA) also submitted a petition for rehearing en banc as amici in this case. The Ct, noting that amici cannot file petitions for rehearing en banc, interpreted their petition as a motion to intervene.

Intervention both of right and by permission, under FRCP 24, can only occur " '[o]n timely motion.' " Three factors are considered to determine timeliness: (1) the stage of the proceedings when intervene is sought; (2) prejudice to other parties; and (3) reasons for the length of the delay."

Regarding the stage of the proceedings, the court believed the motions were untimely based on the age of the case and when intervention was sought. More than four years had passed between when the case began and when the motions to intervene were filed. Furthermore, intervention was sought when the case was on appeal, bringing into play precedent that intervention at the appellate stage should be limited to rare cases. Thus, this court reasoned that allowing intervention after the publication of an appellate opinion should be extremely rare.

The second factor, prejudice to other parties, would weigh in favor of timeliness given that no reasons were given as to why or how the parties would face prejudice as a result of delayed intervention here.

The reasons for the length of the delay also weigh against the motions being timely. Parties have a duty to seek intervention as soon as they know or should know that their interests may be adversely affected by the outcome of litigation. Both California and the Brady Campaign originally thought that Sheriff Gore would adequately protect their interests, thus they knew at that point that their interests might be adversely affected by the litigation. The fact that the two movants wanted to avoid inconvenience was not a sufficient reason to justify delay.

California and the Brady Campaign attempted to rely on a prior case where the State of Hawaii was allowed to intervene after a panel's opinion was published; however, in that case the State of Hawaii had petitioned for amicus status and participated at the district court level. Here, neither California nor the Brady Campaign participated as an amicus in the lower court and thus the prior case is distinguishable. While CPCA and CPOA are amici, they cannot rely on the prior case since their participation was not comparable to Hawaii's.

Based on the evaluation of the three relevant factors, the court ruled the motions for intervention were untimely. In the absence of a timely motion, the court held that none of the three movants met their burden of demonstrating " 'imperative reasons' " justifying intervention on appeal. As such, all three motions for leave to intervene were denied.

Dissent:
Judge Thomas dissented on the basis that circuit precedent conflicts with the majority's decision and that the majority's decision deprives the State of California from present an argument on an important constitutional issue.

While the case began with the question of whether the Second Amendment extended to concealed carry of handguns in public, on appeal the case morphed into a challenge of the constitutionality of California's firearm regulatory framework. Judge Thomas argued specific language from the original opinion directly brought the constitutionality of a state statute into question, thereby giving the opportunity to intervene under 28 U.S.C. section 2403(b), Federal Rule of Civil Procedure 24(a) and Federal Rule of Civil Procedure 24(a)(2).

Judge Thomas further argued that the motions to intervene were timely because the State of California moved to intervene as soon as it learned that San Diego County would not be defending the case. Since the opinion broadened the issue from merely the San Diego policy to the entire California handgun regulation scheme, California had no need to intervene until the appellate opinion was published.

Even if California does not have a right to intervene under Rule 24(a), Judge Thomas argues that the State's request for permissive intervention under Rule 24(b) should be granted given that federal question jurisdiction exists, there are common issues of fact and law, and neither the plaintiffs nor the defendants oppose permissive intervention here.

Lastly, Judge Thomas argues that since the constitutionality of a state statute was raised and the attorney general was not properly served, the appropriate remedy under Federal Rule of Civil Procedure 5.1 is to allow intervention on appeal.

Extended Summary: Sheriff William D. Gore declined to file a petition for rehearing en banc from an 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. When the Sheriff refused to file the petition, the State of California and the Brady Campaign to Prevent Gun Violence moved to intervene under Federal Rule of Civil Procedure 24 (FRCP 24). The California Police Chiefs' Association (CPCA_ and the California Peace Officers' Association (CPOA) also submitted a petition for rehearing en banc as amici in this case. The Ct, noting that amici cannot file petitions for rehearing en banc, interpreted their petition as a motion to intervene.

Intervention both of right and by permission, under FRCP 24, can only occur " '[o]n timely motion.' " Three factors are considered to determine timeliness: (1) the stage of the proceedings when intervene is sought; (2) prejudice to other parties; and (3) reasons for the length of the delay."

In examining the first factor, the stage of the proceedings, the court believed the motions were untimely based on the age of the case and when intervention was sought. More than four years had passed between when the case began and when the motions to intervene were filed. Furthermore, the fact that intervention was sought when the case was on appeal rather than in the district court further supported that the motions were untimely. Since precedent established that intervention at the appellate stage should be limited to rare cases, this court reasoned that allowing intervention after the publication of an appellate opinion should be extremely rare. Based on all of these reasons, the ct held that the first factor weighed against timeliness.

The second factor, prejudice to other parties, would weigh in favor of timeliness given that no reasons were given as to why or how the parties would face prejudice as a result of delayed intervention here.

The third factor, reasons for the length of the delay, weighs against the motions being timely. Precedent has established that parties have a duty to seek intervention as soon as they know or should know that their interests may be adversely affected by the outcome of litigation. The State of California and the Brady Campaign argue that their delay was reasonable given that they moved to intervene as soon as they became aware that Sheriff Gore would not be filing a petition for rehearing. The court, however, points out that since the two movants originally thought that Sheriff Gore would adequately protect their interests that they also knew at that point that their interests might be adversely affected by the litigation. Furthermore, the court explained that avoiding inconvenience to yourself is not a sufficient reason to justify delay, otherwise interested parties would be encourage to wait to intervene until the final stages of cases.

California and the Brady Campaign attempted to rely on a prior case where the State of Hawaii was allowed to intervene after a panel's opinion was published; however, in that case the State of Hawaii had petitioned for amicus status and participated at the district court level. Here, neither California nor the Brady Campaign participated as an amicus in the lower court and thus the prior case is distinguishable. While CPCA and CPOA are amici, they cannot rely on the prior case since their participation was not comparable to Hawaii's.

Based on the evaluation of the three relevant factors, the court ruled the motions for intervention were untimely. In the absence of a timely motion, the court held that none of the three movants met their burden of demonstrating " 'imperative reasons' " justifying intervention on appeal. As such, all three motions for leave to intervene were denied.

Lastly, the court addressed the dissent's position that constitutionality was drawn into question here and as such that other statutes would allow the State of California to intervene here. Contrary to the dissent's statements, the court explained that there was only one possible legal question on appeal since the only thing challenged was the San Diego County policy that asserting self-defense is insufficient to demonstrate " 'good cause' " under California law. Given that the opinion specifically stated that the challenge was not to the state-wide ban on open carry, it was narrowly construed to apply to the San Diego County policy only and not to any California statute. Furthermore, the opinion never questioned the constitutionality of any California statute, only San Diego County's exercise of regulatory authority. Given this, the statutes relied on by the dissent were inapplicable here.

Dissent:
Judge Thomas dissented on the basis that circuit precedent conflicts with the majority's decision and that the majority's decision deprives the State of California from present an argument on an important constitutional issue.

Judge Thomas explained that while the case began with the question of whether the Second Amendment extended to concealed carry of handguns in public, that on appeal the case morphed into a challenge of the constitutionality of California's firearm regulatory framework. Thomas based this position on language from the original opinion that stated "in order to resolve the plaintiffs' claims, 'we must assess whether the California scheme deprive[d] any individual of his constitutional rights.' " Judge Thomas argued that this language directly brought the constitutionality of a state statute into question, thereby giving the opportunity to intervene under 28 U.S.C. section 2403(b), Federal Rule of Civil Procedure 24(a) and Federal Rule of Civil Procedure 24(a)(2).

Judge Thomas further argued that the motions to intervene were timely because the State of California moved to intervene as soon as it learned that San Diego County would not be defending the case. That it was the opinion itself that broadened the issue from merely the San Diego policy to the entire California handgun regulation scheme. Therefore, Judge Thomas argues that California had no need to intervene in this case prior to the appellate opinion and as such this case falls within the Hawaii case relied on by California and the Brady Campaign. Since it was only after the filing of the opinion that there remained no party who could adequately defend California's interests, Judge Thomas argues that California's motion to intervene was timely and had a right to intervene.

Even if California does not have a right to intervene under Rule 24(a), Judge Thomas argues that the State's request for permissive intervention under Rule 24(b) should be granted given that federal question jurisdiction exists and there are common issues of fact and law. To bolster this argument, Judge Thomas points out that neither the plaintiffs nor the defendants oppose permissive intervention here.

Lastly, Judge Thomas argues that since the constitutionality of a state statute was raised and the attorney general was not properly served with notice of the pleading that the appropriate remedy under Federal Rule of Civil Procedure 5.1 is to either allow intervention on appeal or vacate the decision and remand to the district court to allow intervention. Rather than remand the case, Judge Thomas argued that the proper remedy is to allow California to intervene.

For the full opinion:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/12/10-56971.pdf

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

Date of Issued Opinion:
November 12, 2014

Docket Number: 10-56971

Decided: Denied motions to intervene.

Case Alert Author: Seth DuMouchel

Counsel: Not listed.

Author of Opinion:
Not listed.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 12/06/2014 04:24 PM     9th Circuit  

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