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State AG's Intervention Motion Stalls Peruta Case for Eight Months

It's a long way from May to December, and February through October is even longer. The landmark Second Amendment case, Peruta v. County of San Diego, No. 10-56971 (02/13/14), has been left hanging for eight months on a procedural issue, the intervention motion made by the California Attorney General.

In Peruta, the Ninth Circuit held San Diego County's concealed carry permit system violated the Second Amendment because it required "good cause" for the issuance of the permit and not a general desire for self-defense. (See http://www.law.com/sites/jamesching/2014/04/12/tactical-considerations-in-the-pending-motion-en-banc-to-review-ninth-circuits-peruta-decision-on-the-second-amendments-effect-on-concealed-carry-permit-issuance-in/#ixzz31nmZMr3b)

The importance of Peruta is that it is the only case to reach this conclusion, and arrayed against it are a multitude of circuits upholding various forms of statutory "good cause" seemingly violating the expansive reading of District of Columbia v. Heller, 554 U.S. 570 (2008). In addition, the Supreme Court has shown little interest in taking up the latter set of cases. (Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), cert. den. sub nom. Drake v. Jerejian, No. 12-1150 (05/05/14)) In all likelihood, given the state of recent Second Amendment jurisprudence, the only type of case which the Supreme Court might consider is a "maverick" case, such as Peruta, which creates a split between the Circuits on the "good cause" issue.

As I pointed out earlier, the motives of the parties are not simply based on a desire to get the "good cause" issue decided once and for all by the Supreme Court. (http://images.law.com/sites/jamesching/2014/04/12/tactical-considerations-in-the-pending-motion-en-banc-to-review-ninth-circuits-peruta-decision-on-the-second-amendments-effect-on-concealed-carry-permit-issuance-in/) A perfect example of this is the pendency of the Attorney General's motion to intervene.

Peruta is now before the Ninth Circuit on the California Attorney General's February 27 Motion to Intervene and Petition for an En Banc Hearing. The former is the predicate for the latter, as the Attorney General did not participate in the District Court case and must gain permission to participate in the appeal.

This point should be emphasized: the only party defendant and the only appellee is the San Diego Sheriff. As extensively analyzed in the Peruta opinion, the Sheriff was the official authorized to issue permits in the County, and the Attorney General is not a permit decision-maker under the relevant California laws. Thus, the Sheriff was the only government official involved in the District Court case.

Rule 24 of the Federal Rules of Civil Procedure covers intervention, i.e. entering the case, by a third party. (This discussion assumes that this Rule applies to appellate procedure because the Rules of Appellate Procedure do not have a specific intervention rule and only discusses relevant provisions of the Rule.) Intervention by right under subdivision (a)(2) involves a potential party who:

"claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."

It is immediately obvious that the language of the provision is not a good fit to Peruta. The rule literally applies to property or transactions, not a constitutional challenge to the regulation of firearms. The advisory note to this Rule makes this point through example:

"The [subdivision] covers the situation where property may be in the actual custody of some other officer or agency-such as the Secretary of the Treasury-but the control and disposition of the property is lodged in the court wherein the action is pending."

In other words, the thrust of the intervention provision was directed towards property or transactions involved with property. This preliminary issue has been steadfastly ignored by all parties, and the briefing has focused only on the second part of the provision, the ability of the existing party, the Sheriff, to adequately represent the interest.

Subdivision (b)(1)(B) of the Rule allows permissive intervention to a third party who "has a claim or defense that shares with the main action a common question of law or fact." However, the subdivision clearly refers to a related, not identical, question of law or fact, and the Attorney General simply has nothing other that the arguments already made before the District Court in creating the record and which were considered by the Ninth Circuit.

Under subdivision (b)(2)(A), a state official may intervene if a party's, in this case, Peruta's, claim or defense is based on "a statute or executive order administered by the officer or agency." However, as the Peruta opinion shows, the only relevant law concerns the Sheriff and the only relevant official is the Sheriff. Otherwise, the Attorney General would have been an indispensable party to the District Court action.

Finally, under subdivision (b)(3), the relevant court must consider whether "the intervention will unduly delay or prejudice the adjudication of the original parties' rights. Under Rule 5.1(b), the District Court "must, under 28 U.S.C. 2403, certify to the [state] attorney general that a [state] statute has been questioned [as unconstitutional]." Whether or not this was done, the California Attorney General can be shown to have knowledge from the inception of the case that a Second Amendment challenge was being made to the permit system. No party has addressed these issues of delay and prejudice under these circumstances, given that the Attorney General did not timely intervene under Rule 5.1(c). As noted in subdivision (d), failure to give notice by a party or the court "does not forfeit a constitutional claim or defense that is otherwise timely asserted."

The key case on intervention is Day v. Apoliona, 505 F.3d 963 (9th Cir. 2007), a case of little precedential value for Peruta. In Day, the state, as amicus curiae in the District Court case, advanced the argument that plaintiffs do not have individual rights under section 5(f) of the Hawaiian Admission Act that are enforceable through 42 U.S.C. section 1983, i.e. a pure property question. The defendants took no position with regard to that question and refused to file a request for an en banc review. The granting of the motion to intervene was based on the danger to the state's property rights caused by the defendants' refusal to petition for en banc consideration. In doing so, the Circuit was evidencing concern under Rule 24 for the state's imminent loss of property as well as the defendants' known refusal to pursue en banc review.

Neither factor is in play in Peruta. As noted earlier, no property is involved. Further, there is no showing that failure to pursue en banc review is deleterious. This decision is surely a matter of the Sheriff's tactics rather than the loss of a meritorious defense in the case. Is the Circuit willing to gainsay the Sheriff's clear tactical choice of ignoring the en banc process by substituting counsel, the Attorney General, who has already decided that she will seek en banc review if allowed to intervene?

In sum, the question of the Attorney General's intervention is not extraordinarily complex on the law. Neither Day nor Rule 24 seems to apply to Peruta because of the lack of a property issue, because of the District Court and Circuit's fulsome consideration of the constitutional issues, and because no one challenges the adequacy of the Sheriff's defense of the permit system.

However, there are extraneous factors which complicate the matter. Despite the fact that there appears to be no legal basis for intervention, on March 26, Peruta's own lawyers have stated they oppose mandatory intervention but would not oppose discretionary intervention under subdivisions (a)(2) or (b). The Circuit is thus faced with Peruta's own offer to, in essence, stipulate to the Attorney General's intervention.

Explaining Peruta's lawyers' concession must rest on mere speculation. It would seem that a primary tactical goal would be to get the case out of the Circuit and before the Supreme Court as soon as possible. If there is intervention and subsequent en banc consideration, the original panel decision will surely be reversed and there will be no conflict between the circuits on the permit issue. Therefore, the possibility of the Supreme Court taking the case is reduced. Not only will the original Peruta opinion be gutted, but the Supreme Court will have no case to consider. Stipulation to the Attorney General's intervention would seem to be antithetical to these primary goals.

The Peruta court is therefore not dealing with the pure legal issue of a Rule 24 intervention, although it would be making new precedent in declaring that the Rule applies on appeal in cases without a nexus to property. Rather, it is facing the anomalous situation in which both Peruta and the Sheriff state that they have no objection to the Attorney General's intervention when in law there is no justification for such an intervention. Of course, no court is obliged to accept any stipulation, especially when it is contrary to law. However, prudence dictates that a careful parsing of the positions of counsel and the intervenor be made prior to action.

The panel which wrote the opinion certainly believes the opinion represents the best possible interpretation of the law and therefore no en banc consideration need be made. Yet any rational person would pause when both parties to a case seem to wish the intervention of a third party whose whole purpose is to seek en banc consideration.

For further information, readers may refer to the following:

"10-Day Waiting Period for Gun Delivery Voided in California," law.com (08/26/2014), http://www.law.com/sites/jamesching/2014/08/26/10-day-waiting-period-for-gun-delivery-voided-in-california/#ixzz3BTSY14kq

"Palmer v. DC Raises Handgun Carry Issue on Heller's Home Turf," law.com (07/28/2014), http://www.law.com/sites/jamesching/2014/07/28/palmer-v-dc-raises-handgun-carry-issue-on-hellers-home-turf/

"Sheriff's Response to Ninth Circuit Leaves Issue of AG's Participation in Peruta Appeal Wide Open," law.com (05/15/2014), http://www.law.com/sites/jamesching/2014/05/15/sheriffs-response-to-ninth-circuit-leaves-issue-of-ags-participation-in-peruta-wide-open/#ixzz31oGslN00

"Ninth Circuit Issues Order in Peruta Gun Permit Case Requiring Sheriff to Clarify His Status On Appeal," law.com (05/03/2014), http://www.law.com/sites/jamesching/2014/05/03/ninth-circuit-issues-order-in-peruta-gun-permit-case-requiring-sheriff-to-clarify-his-status-on-appeal/

"Tactical Considerations in the Pending Motion En Banc to Review Ninth Circuit's Peruta Decision on the Second Amendment's Effect on Concealed Carry Permit Issuance in California," law.com (04/12/2014), http://www.law.com/sites/jamesching/2014/04/12/tactical-considerations-in-the-pending-motion-en-banc-to-review-ninth-circuits-peruta-decision-on-the-second-amendments-effect-on-concealed-carry-permit-issuance-in/

"California Gun Laws Under Fire," The Recorder (03/14/2013)

Read more: http://www.law.com/sites/jamesching/2014/10/12/state-ags-intervention-motion-stalls-peruta-case-for-eight-months/#ixzz3GcSMIPxt