Right now, the Ninth Circuit is deciding whether gun-rights advocates get the same treatment as other litigants in federal court. According to the vote of at least one Ninth Circuit one lone judge, the answer is apparently “no.”
Here’s the background. Earlier this year, a panel of the Ninth Circuit issued its ruling in Peruta v. County of San Diego (2014), which struck down San Diego’s policy of requiring concealed-carry permit applicants to show a pressing need for self-protection that distinguishes the applicant from everyone else. The Ninth Circuit’s opinion is significant mostly because it faithfully applies the Supreme Court’s holdings in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), which resurrected the Second Amendment as an individual right. Other appellate courts have only grudgingly accepted binding Supreme Court precedent under the Second Amendment, so this case was a big win for the plaintiffs.
This case is interesting on the merits, but the real story is the maneuvering before the Ninth Circuit. Peruta was originally filed in 2009. Although the California attorney general was aware of the litigation soon after it was filed, it didn’t intervene. In fact, the AG waited to file its brief until after the Ninth Circuit issued its panel opinion striking down the San Diego policy. That was February 2014, four years after the litigation began.
Only then did the AG intervene and ask for a rehearing en banc (along with the Brady Campaign to Prevent Gun Violence and a couple other anti-gun groups). After briefing, the panel denied the AG’s motion because, well, the AG was four years late. As the panel’s order wryly noted (citations omitted):
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.” . . . Regarding the first factor, the stage of the proceedings, the age of the case discourages us from declaring the motions timely. The movants sought intervention more than four years after this case began. That this case is now on appeal rather than in the district court further suggests that the motions to intervene are untimely. . . In this case, the movants filed motions to intervene after our opinion was filed. If intervention on appeal is limited to “exceptional case[s],” then, by the same logic, intervention after the publication of an appellate opinion must be extremely rare. The first factor, therefore, weighs against timeliness.
That’s putting it mildly.
Although there was no prejudice to the plaintiffs that would result from intervention, the AG had waited until after San Diego’s Sheriff announced that he would not seek to go en banc. In essence, the AG’s office had been looking to free ride in the Sheriff’s litigation, but when that turned out to be a bad bet, the court refused to bail them out for the bad decision. Other Ninth Circuit precedent on point was readily distinguishable, so the panel denied the motion to intervene. Although the dissent argued that the state could intervene because the majority opinion had put the constitutionality of California’s state statute at issue, Peruta had only challenged San Diego county’s policy, not the entire California scheme. Moreover, the AG had slept on its rights in the case that actually challenged the California statute, Richards v. County of Yolo (9th Cir. 2014). (The plaintiffs won in that case, too.)
After the panel denied the AG’s motion to intervene, things went strange.
On November 26, the California AG filed a petition for rehearing en banc, not of the merits opinion, but just the order denying the motion to intervene. Then, on December 3, at least one judge called sua sponte for a vote on rehearing of the entire case, even though no one had the judge hadn’t done so in the preceding nine months after the decision.
Decisions to rehear cases en banc are rare to begin with. It’s even rarer for courts to seek rehearing sua sponte. And it’s vanishingly rare for a single judge to try to give a litigant something they didn’t even ask for, in this case the opportunity to argue for a rehearing of the entire case.
The extraordinary procedural turns in this case suggest that the lone judge (or judges) who asked for rehearing was acting opportunistically, hoping to give the California AG a second bite at the apple. We can’t know for sure since those decisions are rarely explained, but that’s sure what it looks like. The parties have now finished their briefing and the court is presumably considering the issue. At this point, the appearance of favoritism is very strong, even according to our already-low expectations for the Ninth Circuit.
For an adversarial system of justice to work at all, judges have to maintain some real detachment from the parties in the case, and not act as a second set of attorneys for their preferred litigants. The Ninth Circuit would do well to remember Learned Hand’s observation that “you may not carry a sword beneath a scholar’s gown, or lead flaming causes from a cloister.” The rule of law depends on it.
[Update 1/5/2015: An alert reader points out that the the Ninth Circuit may just be using boilerplate language when it says that a judge called for a vote on rehearing, so it’s possible that more than one judge requested the vote. The post has been edited accordingly.]