FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD PERUTA; MICHELLE

LAXSON; JAMES DODD; LESLIE

BUNCHER, DR.; MARK CLEARY;

CALIFORNIA RIFLE AND PISTOL

ASSOCIATION FOUNDATION,

Plaintiffs-Appellants,

STATE OF CALIFORNIA,

Intervenor-Pending,

v.

COUNTY OF SAN DIEGO; WILLIAM D.

GORE, individually and in his

capacity as Sheriff,

Defendants-Appellees.

No. 10-56971

D.C. No.

3:09-cv-02371-

IEG-BGS

ORDER

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 anyCalifornia 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 ofthe Supreme Court, notthe 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.