Edward Peruta v. County of San Diego , 771 F.3d 570 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD PERUTA; MICHELLE No. 10-56971
LAXSON; JAMES DODD; LESLIE
BUNCHER, DR.; MARK CLEARY; D.C. No.
CALIFORNIA RIFLE AND PISTOL 3:09-cv-02371-
ASSOCIATION FOUNDATION, IEG-BGS
Plaintiffs-Appellants,
STATE OF CALIFORNIA, ORDER
Intervenor-Pending,
v.
COUNTY OF SAN DIEGO; WILLIAM D.
GORE, individually and in his
capacity as Sheriff,
Defendants-Appellees.
Filed November 12, 2014
Before: Diarmuid F. O’Scannlain, Sidney R. Thomas,
and Consuelo M. Callahan, Circuit Judges.
Order;
Dissent by Judge Thomas
2 PERUTA V. COUNTY OF SAN DIEGO
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PERUTA V. COUNTY OF SAN DIEGO 3
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.
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.
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
4 PERUTA V. COUNTY OF SAN DIEGO
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 Substances Control v. Commercial Realty
Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002)).
A
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. See id. (affirming a district
court’s denial of a motion to intervene as untimely when it
was filed four years into the proceedings).
That this case is now on appeal rather than in the district
court further suggests that the motions to intervene are
untimely. See Bates v. Jones, 127 F.3d 870, 873 (9th Cir.
1997); Amalgamated Transit Union Int’l, AFL-CIO v.
Donovan, 771 F.2d 1551, 1552 (9th Cir. 1985) (per curiam)
(“A court of appeals may allow intervention at the appellate
PERUTA V. COUNTY OF SAN DIEGO 5
stage where none was sought in the district court only in an
exceptional case for imperative reasons.” (internal quotation
marks omitted)). 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.
B
The second factor, on the other hand, weighs in favor of
timeliness. The parties have not given us any reason to
believe that they would face prejudice as a result of delayed
intervention by the movants.
C
The third factor, the reasons for and length of the delay,
suggests that the motions to intervene are untimely. Under
our longstanding precedent, “[a] party seeking to intervene
must act as soon as he ‘knows or has reason to know that his
interests might be adversely affected by the outcome of the
litigation.’” United States v. Oregon, 913 F.2d 576, 589 (9th
Cir. 1990) (quoting United States v. City of Chicago,
870 F.2d 1256, 1263 (7th Cir. 1989)); accord Alisal Water,
370 F.3d at 922–23; Commercial Realty Projects, 309 F.3d at
1120.
Both California and the Brady Campaign argue that their
delay in moving to intervene was reasonable. They filed their
motions shortly after learning that Sheriff Gore would not file
a petition for rehearing en banc, which they contend was the
moment they knew that Sheriff Gore would not adequately
6 PERUTA V. COUNTY OF SAN DIEGO
protect their interests. Cal. Mot. to Intervene at 13; Brady
Campaign Mot. to Intervene at 14. If the movants originally
thought that Sheriff Gore adequately protected their interests,
they must have “know[n] that [their] interests might be
adversely affected by the outcome of the litigation.” Oregon,
913 F.2d at 589. The movants do not deny that they have
long been aware of this case.1
Although the movants may have avoided some
inconvenience to themselves by waiting to seek intervention,
such considerations do not justify delay. See Alisal Water,
370 F.3d at 923–24 (“An applicant’s desire to save costs by
waiting to intervene until a late stage in litigation is not a
valid justification for delay.”). A contrary rule “would
encourage interested parties to impede litigation by waiting
to intervene until the final stages of a case.” Id. at 924.
1
The dissent claims that California’s delay is justified because “until the
majority opinion was issued, it was not apparent that any law or regulation
other than the county-specific good cause requirement was in jeopardy.”
Dissent at 16–17 (citing Peruta v. County of San Diego, 758 F. Supp. 2d
1106, 1113–17 (S.D. Cal. Dec. 10, 2010)). However, the district court
opinion itself cited by the dissent noted that the County of San Diego
“maintains Plaintiffs are asserting a back door attack on the
constitutionality of [the California statute].” Peruta, 758 F. Supp. 2d at
1115 n.7. Thus, if “California’s firearm regulatory framework” had been
placed under “considera[tion]”, dissent at 13, such consideration began in
the district court long before issuance of our opinion, nearly three and a
half years before, in fact.
Moreover, as explained in more detail below, see Part IV, infra, no
law or regulation other than San Diego County’s good cause policy has
been invalidated, “drawn in question,” or placed “in jeopardy” by the
panel opinion – notwithstanding San Diego County’s claim that state
statutes were under “back door attack” or the dissent’s insistence that
California state law is “in jeopardy.” Dissent at 15, 18.
PERUTA V. COUNTY OF SAN DIEGO 7
D
California and the Brady Campaign rely on our order in
Day v. Apoliona, in which we granted the State of Hawaii’s
motion to intervene even though it was filed after the panel
opinion was published. 505 F.3d 963, 966 (9th Cir. 2007).
Day’s reasoning makes clear that it represents the exception
rather than the rule. The Day order expressly relied on the
fact that Hawaii had not “ignored the litigation or held back
from participation to gain tactical advantage.” Id. Instead,
Hawaii had “sought amicus status, and—singlehandedly—
argued a potentially dispositive issue in this case to the
district court and this panel.” Id. Such participation was
especially helpful because the existing defendants were
“unwilling[] . . . to take a position on th[at] issue.” Id. at 965.
This case is quite different. Neither California nor the
Brady Campaign participated as an amicus below or before
this Court. Brady Campaign Mot. to Intervene at 1 n.1
(distinguishing between the Brady Campaign and the Brady
Center). Although CPCA and CPOA are amici, their
participation has not been comparable to Hawaii’s in Day.
CPCA and CPOA did not, “singlehandedly” or otherwise,
argue any issue that Sheriff Gore refused to litigate.
III
Considering each of the relevant factors, we conclude that
the movants have not met the heavy burden of demonstrating
“imperative reasons” in favor of intervention on appeal.
Bates, 127 F.3d at 873. The stage of the proceedings, the
length of the delay, and the reason for the delay all weigh
against timeliness. In the absence of a timely motion,
intervention is unavailable. Fed. R. Civ. P. 24(a)–(b).
8 PERUTA V. COUNTY OF SAN DIEGO
IV
The dissent asserts that 28 U.S.C. § 2403 and Federal
Rule of Civil Procedure 5.1 provide a basis for intervention.
These assertions are incorrect.
28 U.S.C. § 2403(b) provides:
In any action, suit, or proceeding in a court of
the United States to which a State or any
agency, officer, or employee thereof is not a
party, wherein the constitutionality of any
statute of that State affecting the public
interest is drawn in question, the court shall
certify such fact to the attorney general of the
State, and shall permit the State to intervene
for presentation of evidence, if evidence is
otherwise admissible in the case, and for
argument on the question of constitutionality.
The State shall, subject to the applicable
provisions of law, have all the rights of a party
and be subject to all liabilities of a party as to
court costs to the extent necessary for a proper
presentation of the facts and law relating to
the question of constitutionality.
28 U.S.C. § 2403(b) (emphasis added). Similarly, Rule 5.1
requires “[a] party that files a pleading, written motion, or
other paper drawing into question the constitutionality of a
federal or state statute” to “file a notice of constitutional
question” and serve such notice on the relevant sovereign’s
attorney general. Fed. R. Civ. P. 5.1 (emphasis added).
PERUTA V. COUNTY OF SAN DIEGO 9
The dissent admits that no “law or regulation other than
the county-specific good cause requirement was in jeopardy”
when Peruta presented his challenge to the District Court,
dissent at 16, but argues that “on appeal, the case morphed
into another challenge entirely, as the majority opinion
instead considered the constitutionality of California’s
firearm regulatory framework.” Dissent at 13. But the
dissent cannot assert that the case somehow “morphed” on
appeal into a new challenge when the only law “drawn into
question” on appeal was the law challenged at the District
Court: the San Diego County policy.
Peruta’s challenge is only to the San Diego County policy
that “an assertion of self-defense is insufficient to
demonstrate ‘good cause’” under the California statutory
scheme. See Peruta v. County of San Diego, 742 F.3d 1144,
1147–48, 1167–68, 1179 (9th Cir. 2014) (asking “whether
San Diego County’s ‘good cause’ permitting requirement
‘infringe[s]’ the right” to bear arms; assessing “the nature of
the infringement that the San Diego County policy
purportedly effects on the right to bear arms”). As the
opinion states, this is “a narrow challenge to the San Diego
County regulations on concealed carry, rather than a broad
challenge to the state-wide ban on open carry[.]” Id. at
1172–73. Simply put, no California statute has been
challenged, overturned, or had its constitutionality “drawn
into question.” Of course, analyzing the constitutionality of
the San Diego County policy required “considering” the
California statutory scheme, but only inasmuch as it
established the “backdrop” for interpreting the “County’s
restrictive interpretation of ‘good cause’.” Peruta, 742 F.3d
at 1171; see also id. at 1169–70 (considering the California
scheme and its exemptions, in order to show that “it is as
though San Diego County banned all political speech, but
10 PERUTA V. COUNTY OF SAN DIEGO
exempted from this restriction particular [people, places, and
situations]” and that “the severe restrictions in effect in San
Diego County” function as “a near total-prohibition on
bearing [arms]”).
Most importantly, the opinion never “draws into
question” the “constitutionality” of any California statute—it
only questions San Diego County’s exercise of regulatory
authority under such state statutes. See Mot. of CA to
Intervene at 7 (admitting the Court’s opinion does “not
directly rul[e] on the constitutionality of state statutes” and
only challenges the San Diego County policy regarding “good
cause” (internal quotations omitted)). Though the Supreme
Court authority interpreting the phrase “drawn in question” is
not of recent vintage, it is clear:
The validity of a statute is not drawn in
question every time rights claimed under such
statute are controverted, nor is the validity of
an authority, every time an act done by such
authority is disputed. The validity of a statute
or the validity of an authority is drawn in
question when the existence, or
constitutionality, or legality of such statute or
authority is denied, and the denial forms the
subject of direct inquiry.
U.S. v. Lynch, 137 U.S. 280, 285 (1890) (per Fuller, C.J.),
cited in 16B C. Wright, A. Miller, E. Cooper, & R. Freer,
Federal Practice and Procedure § 4013 (3d ed.) (describing
Lynch’s description of the phrase “drawn in question” as
“[o]ne of the most frequently quoted” nineteenth century
decisions which “established [the phrase’s] meaning”); see
also Kennard v. State of Nebraska, 186 U.S. 304, 308 (1902)
PERUTA V. COUNTY OF SAN DIEGO 11
(explaining that no federal statute was “drawn in question”
when such statutes were construed by the state court, as “the
validity of a statute or treaty of the United States is not
‘drawn in question,’ within the meaning of § 709 [of the
Judicial Code], every time rights claimed under a statute or
treaty are controverted”), cited in 16B Wright & Miller,
§ 4013; Comment, The Judiciary Act of 1937, 51 Harv. L.
Rev. 148, 148–49 (1937) (“The chief purpose of [adding
§ 2403 to the Judicial Code] is to remove the possibility of
having a federal statute declared unconstitutional in a suit to
which the United States was not a party . . . .” (emphasis
added)).
Thus “[d]rawing in question the validity of a statute”
requires more than “the mere objection to an exercise of
authority under a statute, whose validity is not attacked.” Jett
Bros. Distilling Co v. City of Carrollton, 252 U.S. 1, 6
(1920); see also Wilson v. Cook, 327 U.S. 474, 480–82 (1946)
(explaining that suit challenging official’s interpretation of
state statute as applying to timber collected from U.S. land
did not challenge the validity of the statute and thus the
statute’s constitutionality was not “drawn in question”)
(citing Jett Brothers).2 That the opinion engages in analysis
2
Jett Brothers and Wilson interpreted § 237 of the Judicial Code, which
conferred jurisdiction on the Supreme Court when a suit “draw[s], in
question the validity of a statute of any State, on the ground of its being
repugnant to Constitution, treaties, or laws of the United States.”
Judiciary Act of 1925, ch. 229, 43 Stat. 936 (enacting Judicial Code
§ 237).
More recent authority, from this circuit and others, also demonstrates
that no state statute has been “drawn into question” here. Interpreting the
accompanying provision of § 2403(a), identical to § 2403(b) except that
it involves federal rather than state statutes, we have explained that
12 PERUTA V. COUNTY OF SAN DIEGO
and interpretation of California statutes does not change that
the only “objection” raised and decided is the exercise of
authority under such statutes, not the statutes themselves. No
right of intervention under § 2403 or Rule 5.1 exists here.
V
The State of California’s Motion to Intervene is
DENIED.
The Brady Campaign’s Motion for Leave to Intervene is
DENIED.
CPCA and CPOA’s Petition for Rehearing En Banc,
construed as a motion to intervene, is DENIED.
§ 2403’s purpose is “ensuring that courts not rule on the constitutionality
of an Act of Congress without first receiving input from the United
States.” Carrol v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Certainly
ruling on the constitutionality of, say, a federal regulation would not
constitute ruling on the constitutionality of an Act of Congress.
Analogously, ruling on the constitutionality of a County policy does not
constitute ruling on the constitutionality of a “statute of [a] State.” See
Int’l Paper Co. v. Inhabitants of Town of Jay, ME., 887 F.2d 338, 341 (1st
Cir. 1989) (explaining that “challenging a municipal ordinance” does not
constitute “questioning the constitutionality of a state statute” under
§ 2403(b)); Gillon v. Federal Bureau of Prisons, 424 Fed. Appx. 722, 726
(10th Cir. 2011) (explaining that a challenge to a federal agency policy is
not a challenge to a “a federal or state statute” under Rule 5.1); cf. Schweir
v. Cox, 340 F.3d 1284, 1286 (11th Cir. 2003) (Federal intervention under
28 U.S.C. § 2403(a) was permissible because party argued that federal
statute was itself unconstitutional); Strong v. Bd. of Educ. of Uniondale
Union Free Sch. Dist., 902 F.2d 208, 213 n.3 (2d Cir. 1990) (finding a
statute’s constitutionality “drawn into question” when the plaintiff
explicitly argued it was unconstitutional); Arizonans for Official English
v. Arizona, 520 U.S. 43, 74 (1997) (explaining the state Attorney General
had a right to intervene under § 2403(b) when a state constitutional
provision was directly challenged).
PERUTA V. COUNTY OF SAN DIEGO 13
THOMAS, Circuit Judge, dissenting:
The majority’s decision to prevent the State of California
from intervening in this case conflicts with controlling circuit
precedent and deprives one of the parties most affected by our
decision the opportunity to even present an argument to us on
an important constitutional question affecting millions of
citizens. I respectfully dissent.
I
This case began with consideration of the narrow but
important question of whether the scope of the Second
Amendment extended to concealed carry of handguns in
public and, if so, whether San Diego County’s “good cause”
requirement unconstitutionally infringed on that right.
However, on appeal, the case morphed into another challenge
entirely, as the majority opinion instead considered the
constitutionality of California’s firearm regulatory
framework.
That the opinion primarily addressed state regulation of
handguns could hardly be clearer. Although the majority
stated that the plaintiffs “focus[] [their] challenge on the
licensing scheme for concealed carry,” it construed the
plaintiffs’ complaint as contending that “the San Diego
County policy in light of the California licensing scheme as
a whole violates the Second Amendment” and “targets the
constitutionality of the entire scheme.” Peruta v. County of
San Diego, 742 F.3d 1144, 1171 (9th Cir. 2014) (emphasis in
original). It reasoned that in order to resolve the plaintiffs’
claims, “we must assess whether the California scheme
deprives any individual of his constitutional rights.” Id. at
1169 (emphasis added). Thus, in the majority’s view, the
14 PERUTA V. COUNTY OF SAN DIEGO
issue in the case is not the concealed carrying of a weapon but
rather “whether [the California scheme] allows the typical
responsible, law-abiding citizen to bear arms in public for the
lawful purpose of self-defense.” Id. The majority stated that
“if self-defense outside the home is part of the core right to
‘bear arms’ and the California regulatory scheme prohibits
the exercise of that right, no amount of interest-balancing
under a heightened form of means-ends scrutiny can justify
San Diego County's policy.” Id. at 1167.
Given the majority’s opinion, the statutory command on
intervention is direct. If the constitutionality of a state statute
is drawn into question, that state must be afforded the
opportunity to intervene. 28 U.S.C. § 2403(b) provides:
In any action, suit, or proceeding in a court of
the United States to which a State or any
agency, officer, or employee thereof is not a
party, wherein the constitutionality of any
statute of that State affecting the public
interest is drawn in question, the court shall
certify such fact to the attorney general of the
State, and shall permit the State to intervene
for presentation of evidence, if evidence is
otherwise admissible in the case, and for
argument on the question of constitutionality.
The State shall, subject to the applicable
provisions of law, have all the rights of a party
and be subject to all liabilities of a party as to
court costs to the extent necessary for a proper
presentation of the facts and law relating to
the question of constitutionality.
PERUTA V. COUNTY OF SAN DIEGO 15
Further, Federal Rule of Civil Procedure 24(a) provides,
in relevant part, that “[o]n timely motion, the court must
permit anyone to intervene who . . . is given an unconditional
right to intervene by a federal statute.” Given the clear
language of 28 U.S.C. § 2403(b), California should be
afforded the right to intervene under Rule 24(a).1
In addition, California also has the right to intervene
under Federal Rule of Civil Procedure 24(a)(2), which
provides that a court must permit anyone to intervene 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.
Fed. R. Civ. P. 24(a)(2).
Generally, “Rule 24(a)(2) is construed broadly in favor of
proposed intervenors.” United States ex rel. McGough v.
Covington Tech. Co., 967 F.2d 1391, 1394 (9th Cir. 1992).
The “liberal policy in favor of intervention serves both
efficient resolution of issues and broadened access to the
1
The majority concludes that “the constitutionality” of California’s laws
have not been “drawn in question,” based on several cases from the
Supreme Court. However, those cases are concerned with the appellate
jurisdiction of the Supreme Court, not the proper standard for intervention.
See United States ex rel. Lisle v. Lynch, 137 U.S. 280, 281 (1890);
Kennard v. State of Nebraska, 186 U.S. 304, 308 (1902); Jett Bros.
Distilling Co. v. City of Carrollton, 252 U.S. 1, 5–6 (1920); Wilson v.
Cook, 327 U.S. 474, 480 (1946).
16 PERUTA V. COUNTY OF SAN DIEGO
courts.” United States v. City of Los Angeles, 288 F.3d 391,
397–98 (9th Cir. 2002) (citation omitted). As we have noted:
By allowing parties with a practical interest in
the outcome of a particular case to intervene,
we often prevent or simplify future litigation
involving related issues; at the same time, we
allow an additional interested party to express
its views before the court.
Id. at 398 (citation omitted).
The opinion at issue directly involves the entirety of
California’s handgun regulation scheme, and will greatly
impact any future litigation pertaining to the scheme’s
constitutionality. However, because the County has elected
not to pursue a petition for rehearing en banc, no existing
party can adequately represent California’s interests.
Therefore, the requirements of Rule 24(a)(2) are also
satisfied.
The majority concludes that California’s motion is not
timely, citing to the principle that “[a] party seeking to
intervene must act as soon as he knows or has reason to know
that his interests might be adversely affected by the outcome
of the litigation.” United States v. State of Oregon, 913 F.2d
576, 589 (9th Cir. 1990). Yet this is exactly what California
has done. It was not until the majority decision was filed that
San Diego County indicated it would no longer defend the
case. More importantly, until the majority opinion was
issued, it was not apparent that any law or regulation other
than the county-specific good cause requirement was in
jeopardy. The district court opinion focused solely on the
good cause requirement, and the plaintiffs were careful to
PERUTA V. COUNTY OF SAN DIEGO 17
argue that the case was about the County’s policy, not state
regulation. See Peruta v. County of San Diego, 758 F. Supp.
2d 1106, 1113–17 (S.D. Cal. 2010). California moved to
intervene as soon as it was put on notice that its interests were
at stake and would no longer be defended by the County.
As such, this case is similar to Day v. Apoliona, 505 F.3d
963 (9th Cir. 2007). Day involved a Section 1983 action
against the Office of Hawaiian Affairs. The State of Hawaii,
filing as amicus but without requesting to intervene, argued
that the plaintiffs had no individual rights under the Hawaiian
Admission Act that were enforceable under 42 U.S.C. § 1983
– a position that the defendants declined to support. Id. at
964. The district court agreed with Hawaii and dismissed the
case. When we reversed, the State of Hawaii filed a motion
to intervene to file a petition for rehearing en banc because
the Office of Hawaiian Affairs had decided not to do so. We
granted the motion to intervene, despite the fact that “Hawaii
had the opportunity to intervene in this matter at any time
during these proceedings, both before the district court and
before this Court on appeal.” Id.
The majority contends that Day is distinguishable from
this case because California did not file an amicus brief. But
California had no need to seek a role in this case until now.
In this way, the case for intervention in Day was in fact
weaker than the one presented here, because the defendants
in Day had declined “from the beginning” to defend the State
of Hawaii’s position, while the plaintiffs clearly asserted a
theory impacting the State. Id. at 965. Here, the County
defended the policy in full before both this Court and the
district court, and the plaintiffs attempted to craft a case that
would avoid impacting California regulation.
18 PERUTA V. COUNTY OF SAN DIEGO
There can be no doubt that California has a “significant
protectable interest,” Donnelly v. Glickman, 159 F.3d 405,
410 (9th Cir. 1998), in defending the constitutionality of its
laws and regulations regarding handguns and the safety of its
citizens. These laws and regulations have been placed in
jeopardy by the majority opinion, and no party remains – for
the first time in this case – that can adequately defend them.
Given the circumstances of this case, California’s motion is
timely. The plaintiffs will not be prejudiced if California is
permitted to intervene – indeed, the plaintiffs did not object
to allowing California to intervene under Rule 24(a)(2).
Therefore, California has a right to intervene under Rule
24(a).
II
Even if California did not have a right to intervene under
Rule 24(a), we should grant the State’s alternative request for
permissive intervention under Federal Rule of Civil
Procedure 24(b). Rule 24(b) permits permissive intervention
on the part of a party “who has a claim or defense that shares
with the main action a common question of law or fact.” The
rule requires (1) an independent ground for jurisdiction, (2)
a timely motion, and (3) a common question of law or fact.
Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d
1349, 1353 (9th Cir. 2013).
Federal question jurisdiction exists, and California is not
raising any new claims. Therefore, the independent
jurisdictional requirement is satisfied. Freedom from
Religion Found., Inc. v. Geithner, 644 F.3d 836, 844 (9th Cir.
2011). As discussed, the motion is timely under the
circumstances presented by the case, and there is no question
that there are common issues of fact and law. Therefore,
PERUTA V. COUNTY OF SAN DIEGO 19
California has satisfied the requirements for permissive
intervention. Moreover, the plaintiffs (as well as the
defendants) do not oppose permissive intervention. Given the
stakes at issue in this case, we should grant permissive
intervention upon denying intervention as of right.
III
Finally, there is an additional, independent ground for
granting California’s motion to intervene. In my dissent to
the panel opinion, I expressed the view that the plaintiffs
should have been required to comply with Federal Rule of
Civil Procedure 5.1. Peruta v. County of San Diego, 742 F.3d
1144, 1196 (9th Cir. 2014) (Thomas, J., dissenting). “Under
that rule, if the state or one of its agents is not a party to a
federal court proceeding, ‘[a] party that files a pleading . . .
drawing into question the constitutionality of a . . . state
statute must promptly’ serve the state’s attorney general with
notice of the pleading and the constitutional question it
raises.” Id. (quoting Fed. R. Civ. P. 5.1(a)). When
constitutional issues are raised, the rule also requires the
district court to certify to the state’s attorney general that the
constitutionality of the state statute has been questioned, and
permit the state to intervene to defend it. Fed. R. Civ. P.
5.1(b), (c).
If proper certification to the attorney general is not made
in the district court, then the remedy on appeal is either to
allow intervention on appeal or vacate the decision and
remand to the district court to allow intervention. Oklahoma
ex rel. Edmondson v. Pope, 516 F.3d 1214, 1216 (10th Cir.
2008). Here, we do not need to go so far as to vacate the
decision and remand the case, as the Tenth Circuit did.
20 PERUTA V. COUNTY OF SAN DIEGO
Instead, the proper remedy is to allow California to intervene
on appeal to defend its interest.
IV
In sum, California’s motion is timely, and it should be
afforded the right to intervene on appeal under Federal Rule
of Civil Procedure 24(a). Alternatively, we should grant its
motion for permissive intervention under Rule 24(b). Finally,
the failures under Rule 5.1 of the plaintiffs to name the State
and the district court to certify that constitutional questions
were at issue require us to allow intervention on appeal to
correct that error.
I respectfully dissent.2
2
If California is granted intervention, I would also vote to grant the
Brady Center to Prevent Gun Violence’s motion for permissive
intervention. I would also construe the petition for rehearing en banc filed
by the California Police Chiefs’ Association and the California Peace
Officers’ Association as a motion for permissive intervention and grant the
motion.