No intervention for California (updated 3/26/15 and 6/9/16)

Peruta v. County of San Diego, No. 10-56971 (9th Cir. Nov. 12, 2014). 

By statute, California has outlawed the carrying of handguns in public unless the person seeking to carry the handgun can establish “good moral character” and show “good cause” for being allowed to carry a handgun in public. California leaves it to county sheriffs to implement this law. San Diego County had a policy that interpreted “good cause” not to include concerns about ones personal safety. The policy was challenged, and the challenge eventually reached the Ninth Circuit.

Back in February of this year, a divided three-judge panel struck down the San Diego policy. The panel majority held that the policy infringed the Second Amendment right to carry a firearm in public for self-defense.

After the decision came down, the San Diego County sheriff decided not to ask a larger, “en banc” panel of the Ninth Circuit to rehear the panel’s decision. The State of California—whose handgun laws San Diego County was enforcing—moved to intervene to seek en banc rehearing. 

The panel, once again divided, denies the motion to intervene, holding that California waited too long before trying to intervene. California says that until the sheriff decided not to seek an en banc rehearing, it didn’t know that the sheriff wasn’t protecting California’s interests. The panel majority says that California should have intervened earlier, because it knew an adverse ruling would affect its interests. 

Judge Thomas dissents. A federal statute, 28 U.S.C. § 2403(b), orders federal courts to allow a state to intervene when the constitutionality of one of its law “is drawn in question.” Judge Thomas, disagreeing with the panel majority, says that the panel’s decision draws in question the constitutionality of California’s handgun-regulation scheme. He also notes that the plaintiffs hadn’t complied with Federal Rule of Civil Procedure 5.1, which requires a party whose pleading draws the constitutionality of a state law into question to notify the state’s attorney general of the lawsuit.

UPDATE (3/26/15): The Ninth Circuit has now ordered rehearing en banc—apparently of both the panel opinion and its order denying intervention. 

UPDATE (6/9/16): The en banc Ninth Circuit now concludes that Californias motion to intervene was timely and that San Diego County’s regulation of public carry is constitutional.