F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E D W A R D P E R U T A ; M I C H E L L E L A X S O N ; J A M E S D O D D ; L E S L I E B U N C H E R , D R .; M A R

K C L E A R Y ; C A L I F O R

N I A R I F L E A

N D P I S T O L A S S O C I A T I O N F O U

N D A T I O N , Plaintiffs-Appellants

,

S T A T E O F C A L I F O R

N I A , I ntervenor-Pending

,

v

.

C O U N T Y O F S A

N D I E G O ; W I L L I A M D

. G O R E , individually

and in his capacity as Sheriff, Defendants-Appellees

. N o. 10-56971

D.C. No. 3:09-cv-02371- I EG-B GS

ORDER

F iled November 12, 2014

B efore: Diarmuid F . O’Scannlain, Sidney R. Thomas, and Consuelo M. Callahan, Circuit J udg es.

Order; Dissent by J udg e ThomasP E R U T A V

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SUMMARY *

Civil Rights

The panel denied motions to intervene, which were filed after t he panel’s opinion a n d judg ment holding that a responsible, law-abiding citiz en has a rig ht under the Second Amendment to carry

a firearm in public for self-defense.

The State of Californi a a n d the B rady Campaig n to Prevent Gun Violence moved to intervene under F e deral Rule of Civil Procedure 24 after San Dieg o Sheriff W illiam D

. Gore declined to fi l e a p e tition for rehearing en banc. The California Police Chiefs’ A ssociat i on and the California Peace Officers’ Association, amici in this case, submitted a petition for rehearing

en b anc. Noting that amici cannot file petitions for r ehearing en banc, the p anel construed the petition as a motion to intervene.

The panel held t h a t t h e movants did not meet the heavy burden of demonstrati ng imperative r easons in f avor o f intervention o n appeal. N oting that the movants soug ht intervention more than four y ears a fter the case beg an, the panel stated that the stag e of the proceeding s, the leng th o f the delay

, and the reason fo r t he delay all weig hed ag ainst timeliness. I n the a

b sence of a timely motion, intervention was unavailable.

T h e p anel further concluded that 28 U.S.C. § 2403 a nd F ederal Rule o f C ivil Procedure 5.1 did not p r ovide a basis

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P E R U T A V

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for intervention because the panel’s opinion never drew into question the constitutionality of a ny California st a t ute, but only questioned San Di eg o County ’ s ex ercise o f reg ulatory authority under the relevant state st a t u t es, specifically the County ’ s poli c y t h at an a ssertion of self-defense is insufficient to demonstrate “g ood cause” under the California statutory scheme.

Dissenting

, J udg e Thomas stated that the majority ’s decision to prevent the State o f California from intervening in this case conflicted with controlling circuit p recedent a nd deprived o ne of the p arties most affected by the panel’s decision the opportunity to even present an a r g ument o n an important constit u tional question affecting millions o f citiz ens.

ORDER

W e must rule on motions to intervene in thi s Second Amendment case w hich were f i l e d after our opinion a

nd judg ment reversing

the District Court were filed.

I

W h en Sheriff W illiam D. Gore d eclined to file a petition for r ehearing en banc in this case, the State of California a nd the B rady Campaig n to Prevent Gun Violence mo v e d to intervene under F ede r a l Rule of Civil Procedure 24. The California Police Chiefs’ Associati on (CPCA) and the California Peace Officers’ Association (CPOA), amici in this
case, subm itted a petition for r ehearing en banc. However, amici cannot file petitions for rehearing en banc. S ee Day v

. Apoliona

, 5 0 5 F

. 3d 963, 964 (9t h Cir. 2007). W e thereforeP E R U T A V

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construe CPCA and CPOA’s petition as a motion to intervene. S

ee CPCA & CPOA Pet. for Reh’g En B anc at 2 n.2 (“To the ex tent the Court finds that CP C A an d 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.”).

I I

I ntervention

, both of rig ht and by permission, c an occur only “ [ o] n timely motion.” F ed. R. Civ. P. 2 4 ( a)–(b). Timeliness is determined with reference to three factors: “(1) the stag e of t h e proceeding at which an applicant seeks
to intervene; (2) the prejud i ce to other parties; and (3) the

reason for and leng th o f the delay .” U nited States v. Alisal W ater Corp.
, 370 F .3d 915, 921 (9th Cir. 2004) (quoting Cal. Dep’t of Toxic S

ubstances Control v

. Commercial Realty Projects, Inc. , 309 F .3d 1113, 1119 (9th Cir. 2002)).

A

Reg arding the first factor, the stag e of t h e proceeding s, the a g e of the case discourag es us from declaring the motions timely

. The movants soug h t intervention more than four
y ears after this case b e g an. See id. (affirming a district court’s denial of a m otion to intervene as untimely when it was filed four y

ears into the proceeding s).

That this case is now on appeal r ather than in the district
court f urther su gge s t s that the motions to intervene a re untimely

. See Bates v. Jon e s , 1 2 7 F .3d 870, 873 (9th Cir. 1997); A malgamated Transit Union I n t ’l, AFL-CIO v

. Donovan
, 771 F .2d 1551, 1552 ( 9th Cir. 1985) (per cu r i am) (“A court of appeals may allow i n tervention at the appellateP E R U T A V

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stag e where none was soug ht in the district court only in an

ex c e ptional case for imperative r easons.” (internal quotation marks o m itted)). I n this case, the movants filed motions to intervene after our opinion was filed. I f interventio n on appeal is limited to “ex ceptio n a l case[ s] ,” then, by the same log ic, intervention a f

ter t he publication of an appellate opinion must be e x tremely r are. T h e first factor, therefore, weig hs ag ainst timeliness.

B

The second f

actor, on the other hand, weig hs in favor o f timeliness. The part i es have not g iven us any reason to believe that they would face p r e j u d ice a s a result of delay ed intervention by

the movants.

C

The third factor, the reasons for and l e n gt h of the delay

, sug g ests that the motions to intervene are untimely

. Under

our long standing precedent, “[ a] p ar t y s eeking to intervene
must act as soon as he ‘knows or has reason to know that his interests mig ht be adversely a f f ected by the outcome of the litig ation.’” United States v. Oregon
, 913 F .2d 576, 589 (9th Ci r

. 1 9 9 0) (quoting United States v. City of Chicago

, 870 F .2d 1256, 1263 (7th Cir. 19 8 9 )) ; accord Alisal W a ter , 370 F

. 3d a t 922–23; Commercial Realty Projects
, 309 F .3d at 1120.

B o th California and the B rady Campaig n arg ue that their delay in moving to intervene was reasonable. They filed their motions shortly a fter learning that Sheriff Gore would not file a petition for rehearing

en banc, which they contend was the
moment t h e y knew that Sheriff Gore would not adequatelyP E R U T A V

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p rotect their interests. Cal. Mot. to I n tervene at 13; B r a d y Campaig n Mot. to I ntervene at 14. I f the movants orig inally thoug ht that Sheriff Gore adequately protected their interests, they must have “know[ n ] that [their] interests mig ht be adversely affected by the outcome of the litig ation.” Oregon
, 9 1 3 F. 2d at 589. The movants do not deny that they have long been aware of this case. 1

Althoug h the movants may have avoided some inconvenience to themselves by w aiting to seek intervention, such considerations do not j u stify delay

. See A lisal W a ter , 370 F .3d at 923–24 (“An applicant’s desire to save costs b y waiting to intervene until a late stag e in litig ation i s not a valid justification for delay .”). A contrary rule “ would

encoura ge i n terested parties to impede litig ation by waiting to intervene until the final stag es of a case.” Id. at 924.

1 T h e d issen t claim s th at Calif o rn i a’ s d elay is j u stif

ied becau se “ u n t il th e

m aj o rity o p i n io n w as issu ed

, it w as n o t ap paren t th at an y law or reg u latio n

o th er th an th e co u n ty

- sp ecif ic g o o d cau se req u irem en t w as in j eo pard y .” Dissen t at 1 6

– 1 7 (citin g Peru ta v. Co u n ty o f Sa n Dieg o , 7 5 8 F. S u

p p

. 2 d 1 1 0 6
, 1 1 13

– 1 7 (S.D. Cal. Dec. 1 0
, 2 0 1 0 ) )

. H o w ev er, th e d istrict co u rt

o p in io n itself cited b y th e d i ssen t n o t ed th at th e Co u n ty o f S a n D i e g o

“ m ain tain s P lain tif

f s are asserti n g a b ack d o o r attack o n th e

co n stitu tio n ality o f [ t h e Calif

o rn ia statu te].” Peru ta , 75 8 F.Su p p .2 d at 1 1 1 5 n .7

. T h u s, if “ Calif

orn ia’ s f irearm reg u lato ry f

ram ew o rk ” h ad b een p laced u n d er “ co n sid era[tio n ]”, dissen t at 1 3
, su ch co n sid eratio n b eg an in th e d istrict co u rt lo n g b efo r e i s s u an ce o f o u r op in io n , n early th ree an d a h alf y ears b ef o re, in f act.

Mo reo v er, as ex p lain ed in m ore d etail b elo w , see P a r t I V
, in f ra , n o law or re g u latio n o th er th an San Dieg o Co u n ty ’ s g o o d cau s e p o l icy h as b een in v alid ated

, “ d raw

n in q u estio n , ” o r p laced “ in j eo p ard y ” b y th e p an el o p i n io n

– n o tw ith stan d in g San Dieg o Co u n ty ’ s claim th at state statu tes w ere u

n d er “ back do o r attack ” o r th e d issen t’ s in sisten ce th at Calif o rn ia state law

is “ in j eo pard y .” Dissen t at 1 5 , 1 8

.P E R U T A V

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D

California and the B r ady Campaig n rely on o u r order in Day v. Apoliona

, in which we g r anted the State of Hawa i i’s

m o t i o n to intervene even thoug h it was filed after the p a n el

o p inion was published. 505 F .3d 963, 966 (9th Cir. 2 0 0 7 ). Day ’s reasoning

makes clear that it r epresents the ex c eption rather than the rule. The Day order e x pre s s l y r e l ied on the fa c t t h a t Hawaii had not “ig nored the litig ation or held back from participation t o g ain tactical advantag e.” Id. I nstead, Hawaii had “soug h t amicus status, a n d—sing lehandedly

— arg ued a potentially dispositive issue in this case to the district court a

n d t h is panel.” Id. Such participation was especially helpful because the e x isting d e fendants were “unwilling [ ]

. . . to take a position on th[ at] issue.” Id. at 965.

This case is quite different. Neith er California nor the B rady Campaig n participated a s an am i c u s below or before this Court. B rady Campaig n Mot. to I ntervene a t 1 n.1 (disting uishing between the B rady Campaig n and the B rady Center). A lthoug h CPCA and CPOA are a m i ci, their participation has not been c omparable to H awaii’s in Day

. CPCA and CPOA did not, “sing lehandedl y ” or otherwise,
arg ue any issue that Sheriff Gore refused to litig ate.

I I I

Considering each of the r elevant factors, we conclude that the movants have n ot met the heavy b urden of d emonstrating “imperative reas o n s ” in favor of intervention o n appeal. Bates
, 127 F .3d at 873. Th e s t a g e o f the proceeding s, the len gt h of the delay

, and the reason for the delay all weig h
aga i nst timeliness. I n the a bsence o f a timely motion, intervention is unavailable. F ed. R. Civ. P. 24(a)–(b).P E R U T A V

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I V

The dissent asse r t s t hat 28 U .S.C. § 2403 and F ederal Rule of Civil Procedure 5.1 provide a basis for intervention. These assertions are incorrect.

28 U.S.C. § 2403(b) provides:

I n any action, suit, or proceeding in a court o f the United States to which a State o r any ag ency , o ffi cer, or employ ee thereof is not a party , wherein the constitutio nality of a ny

s tatute of that State affecting the publi c interest is drawn in q uestion
, the court shall certify such fact to the attorney g eneral of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the c as e, and for
arg ument on the question of constitutionality

. The St a te shall, subject to the applicable provisions of law, have all the rig hts of a party and be subject to all liabilities of a party as to court c osts to the ex tent necessary for a proper presentation of the fa c t s and law relating to the question of constitutionality

.

28 U.S.C. § 2403(b) (emphasis a d ded). Similarly

, Rule 5.1 requires “[ a] p arty that files a pleading

, written m o t i o n , o r other paper d

rawing into question the constitutionality o f a federal or state statute ” to “file a n o tice of constitutional questi o n ” a

nd serve such notice on the relevant sovereig n’s attorney g eneral. F ed. R. Civ. P. 5.1 (emphasis added).P E R U T A V

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The d issent admits that no “law or reg ula t i o n other than the county -specific g ood cause requirement was in jeopardy ” when Peruta p resented h is challeng e to the District Court, dissent at 16, but a

rg ues th at “on appeal, the c ase morphed i n to another challeng e entirely

, as the majority opin i o n instead considered the constitutionality of California’s firearm reg ulatory framework.” Dissent at 13. B ut the dissen t c annot assert that the case somehow “morphed” on appeal into a new challeng e w h e n t h e only law “drawn into question” on a

ppeal was the law challeng ed at th e D i strict Court: the San Dieg o County policy

.

Peruta’s challeng e is only to the San Dieg o County p olicy that “an a s s e rtion of self-defense is insufficient to demonstrate ‘g ood cause’” u n d e r the California statutory scheme. See Peruta v. County of S an Diego
, 742 F

. 3d 1144, 1147–48, 1167–68, 1179 (9th Cir. 2014) (asking “whether San Dieg o County ’s ‘g ood cause’ permitti ng r equirement ‘infring e [ s] ’ the r ig ht” to bear arms; assessing “the nature of the infring ement that t h e San Dieg o County p olicy purportedly effects on the rig h t to bear arms ”)

. As the opinion states, this is “a narro w challeng e to the San Dieg o County reg ulations on concealed c a r r y , rather than a broad challeng e to the state-wide ban on open car r y [ .] ” Id. at 1172–73. Simply put, no C alifornia statute h as been challeng ed, overturne d

, or h ad its constitutionality “drawn into q uestion.” Of course, analy z ing the constitutionality o f th e San Dieg o County policy required “considering ” the California statut o ry scheme, but only inasmuch as it established the “backdrop” for interpreting the “County ’s restrictive interpretation of ‘g ood cause’.” Peruta , 742 F .3d
at 1171; see also id

. at 1169–70 ( consider i n g the California scheme and its e x emptions

, in order to show that “ it is a s thoug h S an Dieg o County banned all political speech, butP E R U T A V

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ex e mpted from this restriction particular [ people, places, a nd situation s ] ” and that “the severe restrictions in e ffect in San Dieg o County ” function as “ a n ear total-pro h i b i tion on bearing [ arms] ”).

Most importantly

, the o pinion never “draws into question” the “constitutionality ” of any California statute—it only q uestions San D ieg o County ’s ex ercise of reg ulatory authority u nder such state statutes. See Mot. o f CA to I n tervene at 7 (admitting the Court’s opinion does “ n o t directly rul[ e] on the constitutiona l i ty of state statutes” a nd only challeng es the San Dieg o County policy reg arding “g ood cause” (internal q

u otations omitted)). T houg h the Supreme Court authority interpreting the phrase “drawn in question” is not of recent vintag e, it is clear:

The validity of a statute is not drawn in question every time rig hts claimed under such
statute are controverted, nor is the validity o f

an aut h o rity

, e v ery time an act done by such authority is disputed. The validity of a statute

or the validity of a n authority is drawn in
q u e s t i o n w h e n t h e e x i s t e n c e , o r constitutionality

, or leg ality o f such statute o r

au t hority is denied, and the denial forms the subject of direct inquiry

.

U.S. v. Lynch

, 1 3 7 U.S. 280, 285 (1890) (per F uller, C.J

. ), cited in 16B C. W rig ht, A. Miller, E. Cooper, & R

. Fr ee r, F ederal Practice and Procedu re § 4013 (3d ed.) ( describing Lynch ’s description of the phrase “drawn in q uestion” a s “[ o] ne of the most fre quently quoted” nineteenth century decisions which “establis h ed [ the phrase’s] meaning ”); see also Kennard v. State of

Nebraska

, 186 U.S. 304, 308 (1902)P E R U T A V

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(ex plaining that no federal statute w as “drawn in q uestion” when such statutes were construed by the state court, as “the validity of a statute or treaty o f t h e United States is not ‘drawn in question,’ w ithin the meaning o f § 709 [ of the J udicial Code]

, e very time rig hts claimed under a statute o r treaty are controverted”), cited in 16B W rig ht & Miller, § 4013; Comment, The Judiciary A ct of 1937
, 51 Harv. L

. Rev. 148, 148–49 (1937) ( “The chief purpose of [ a dding § 2403 to the J udicial Code] is to re m o v e t h e possibility o f having a federal statute declared unconstitutional in a suit to which the United States was not a party

. . . . ” (emphasis added)).

Thus “[ d ] raw i ng in question the validity of a statute” requires more than “the mer e o b jection to an ex ercise o f authority under a statute, whose validity is not a ttacked.” J ett Bros. Distilling Co v. City of Ca r r o l l t o n , 252 U.S. 1, 6 (1920); see a lso W

ilson v. Cook

, 327 U.S. 474, 4 80–82 (1946) ( ex plaining that suit challeng ing o fficial’s interpretation o f
state statute as apply ing to timber collec t e d from U.S. land did not challeng e the validity of the s t a t u t e and thus the statute’s constitutionality was not “ d r awn in qu estion”) (citing Jett Brothers ). 2 That the opinion eng ag es in analy sis

2 Jett Bro th ers an d W

ilso n in terp reted § 2 3 7 o f t h e J u d icial Co d e, w

h ich

co n f err e d j u r i sd ictio n o n th e Su p rem e C o u rt w

h en a s u it “ draw [s], in
q u estio n th e v alid ity o f a statu te o f an y St a t e , o n t h e g ro u n d o f i t s b ein g rep u g n an t to Co n stitu

tio n , treaties, or l aw s o f th e Un ited States.” J u d iciary A ct of 1 9 2 5
, c h

. 2 2 9
, 4 3 Stat. 9 3 6 (en actin g J u d icial Co d e § 2 3 7 ).

Mo re recen t au th o rity

, f

ro m th i s circu it an d o th ers, also d em on strates th at n o state s tatu te h as b een “ d raw n in to q u estio n ” h ere. In terp retin g th e

acco m pan y in g p ro v isio n

o f § 2 40 3 (a), id en tical to § 2 40 3 (b ) ex cep t th at it in v olv es f

ed eral rath er t

h an state statu t e s , w e h av e ex plain ed th atP E R U T A V

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and interpretation o f California statutes does n o t chang e that the only “objection” raised and d ecided is the ex ercise o f authority under such statutes, not the statutes themselves. No rig ht of intervention under § 2403 or Rule 5.1 ex ists here.

V

The St a t e of California’s Motion to I ntervene is DENIED

.

The B rady Campaig n’s Motion for L eave to I ntervene is DENIED

.

CPCA and CPOA’s Petition for Rehe a r i n g En B anc, construed as a motion to intervene, is D ENIED

.

§ 2 4 0 3 ’ s p u rp o se is “ en su rin g th at co u rts n ot ru le o n th e co n stitu tio n ality

o f an A ct o f Co n g ress w ith o u t f irst receiv in g in

p u t f ro m th e Un ited States.” Ca rro l v. Na ka ta n i
, 3 4 2 F.3 d 9 3 4
, 9 4 5 (9 th Cir. 2 0 0 3 ). Certain ly

ru lin g o n th e co ns t i t u t io n ality o f

, s ay , a f ed eral reg u l atio n w o u ld n o t

co n stitu t e ru l i n g o n th e co n s titu tio n ality o f an A ct o f Co n g ress. A n alo g o u s ly

, ru l i n g o n th e co n stitu tio n ality o f a Co u n t

y p o licy d o es n o t

co n stitu te ru lin g o n th e co n stitu

t io n ality of a “ s tatu te o f [a] State.” S ee In t’l Pa per Co

. v. In ha b ita n ts o

f To wn of Ja y, ME.
, 8 8 7 F.2 d 3 3 8
, 3 41 (1 st Cir. 1 9 89 ) (ex p lain in g th at “ ch allen g in g a m u n icip al o rd in an ce” d o es n o t

co n stitu te “ q u estio n i n g t h e co n stitu tio n ality o f a state statu te” u n der § 2 40 3(b )); Gillo n v. Fed era l Bu rea u o f Priso n s , 4 2 4 Fed

. A

pp x

. 7 2 2
, 7 2 6 (1 0 th Cir. 20 1 1 ) (ex plain in g th at a ch allen g e to a f ed eral a g en cy p o licy is

n o t a ch allen g e to a “ a f

ed eral or state statu te” u n d er Ru le 5 .1 ); cf. S ch weir

v. Co x , 3 4 0 F.3 d 1 2 8 4
, 1 2 8 6 (1 1 th Cir. 2 0 0 3 ) (Fed eral in terv en tio n u n der 2 8 U.S.C. § 2 40 3 (a) w as p erm issib le becau se p arty arg u ed t h a t fed eral
statu te w as itself u n co n stitu tio n al); Stro n g v

. B d

. o

f Ed u c. o f Un io nd a le Un io n Free Sch

. Dist.
, 9 02 F.2 d 20 8
, 2 1 3 n .3 ( 2 d C i r

. 1 9 9 0) (f in d in g a

s t a t u te’ s co n stitu

tio n ality “ d raw

n in to q u estio n ” w

h en th e p lain tif

f

ex p licitly arg u ed it w as u n co n stitu tio n al); Arizo n a n s fo r Officia l En glish

v. Arizo n a , 5 2 0 U.S. 4 3
, 7 4 (1 9 9 7 ) (ex plain in g t h e state A tto rn ey Gen eral h ad a rig h t to i n t erv en e u n der § 2 40 3 (b ) w h en a state co n stitu

tio n al
p ro v isio n w as d irectly

ch allen g ed ).P E R U T A V

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THOMAS, Circuit J udg e , dissenting :

The majority ’s decision to p revent the State of California from intervening in this case conflicts with controlling circuit precedent and deprives one of the parties most affected b y our decision the opportunity to even present an arg ument to us on

an important constitutional question affecting mill i o n s o f citiz ens. I

respectfully

dissent.

I

This case beg an with consideration of t h e narrow but i m p ortant question of whether the scope of the Second Amendmen t ex tended to concealed carry of handg uns in public and, if so, whether San Dieg o County ’s “g ood cause” requirement unconstitutionally infring ed on that rig ht. However, o n appeal, the case morphed into another challeng e entirely

, as the majority opinion in s t e ad considered the

c o n s t i t u t i o n a l i t y o f C a l i f o r n i a ’ s f

i r e a r m r e g u l a t o r y framework.

That the opinion primarily addressed state r eg ul a t i on o f handg uns could hardly b e clearer. Althoug h the majority stated that the plaintiffs “focus[ ] [their] challeng e on the licensing scheme f

o r c o ncealed carry ,” it construed the plaintiffs’ c omplaint as contending that “the San Dieg o County p o l i c y in lig ht of the California licensing scheme as

a whole vi olates the Second Amendment” and “targ ets the constitutionality of the entire scheme.” Per uta v. County of San D iego
, 742 F .3d 1 144, 1171 ( 9th Cir. 2014) (emphasis in

o r i ginal). I t reasoned that in order to resolve the plaint i f fs ’ claims, “we m u s t assess whether the California scheme d e p r i ves any individual of his constitutional rig hts.” Id. at 1169 (emphasis added). Thus, in the majority ’s view, theP E R U T A V

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issue in the case is not the concealed carry ing of a w eapon but

r a t her “whether [ the California scheme] allows the ty p ic al responsible, law-abiding citiz en to bear arms in public for the lawful purpose of self-defense.” Id. The majority stated that “if s e l f

- d e f ense outside the home is part of the core r ig ht to ‘bear arms’ and the California reg ulatory scheme pro h i b i t s the ex ercise of tha t r ig ht, no amount of interest-balancing under a heig htened form of means-ends scrutiny can justify San Dieg o County ' s policy .” I d

. a t 1167.

Given the majority ’s opinion, the statutory c ommand on intervention is direct. I f the constitutionality of a state statute is drawn int o q u e stion, that state must be afforded the opportunity

to intervene. 28 U.S.C. § 2403(b) provides:

I n any action, suit, or proceeding in a court o f the United States to which a State o r any ag ency , officer, or employ ee thereof is not a party , wherein the c onstitutionality of any statut e of that State affecting the public interest is d

rawn in question, the court shal l certify such fact to the attorney g eneral of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise adm i s s ible in the case, and for
arg ument on the question of constitutionality

. The State sha l l, subject to the applicable provisions of law, have all the rig hts of a party and be subject to all liabilities of a party as to court c osts to the ex tent necessary for a proper presentation of t h e f

acts and law relating to the question of constitutionality

.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 15

F urther, F ederal Rule of Civil Procedure 24(a) p rovides, i n r elevant part, that “[ o] n timely motion, the court mu s t permit any one to intervene who

. . . is g iven an unconditional

r i ght to intervene by a federal statute.” Given the c l e a r lang uag e of 28 U.S.C. § 2403(b), California should be afforded the rig

ht to intervene under Rule 24(a). 1

I n addition, California a lso has the rig ht t o i ntervene under F e deral Rul e o f Civil Procedure 24(a)(2), which provides that a court must permit any one to intervene who

c l a ims an interest relating to the property o r transaction that is the subject of the a ction, 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

ex isting parties adequately represent t hat interest.

F ed. R. Civ. P. 24(a)(2).

Generally

, “Rule 24(a)(2) is c onstrued broadly in favor o f proposed intervenors.” United States e x rel. M cGou gh v

. Covington Tech. Co.
, 967 F

. 2d 1 391, 1394 ( 9th Cir. 1992). T h e “liberal policy in favor of intervention serves both efficient r esolution o f issues a n d b roadened access to the

1 T h e m aj o rity co n clu d es th at “ th e co n stitu tio n ality ” of Calif

o rn i a’ s law s h av e n o t been “ d raw

n i n q u e s tio n ,” b ased o n sev eral cases f ro m th e Su p rem e Co u

rt. Ho w ev er, th o se cases are co n cern ed w ith th e ap p ellate j u risd ictio n o f th e Su

p rem e Co u rt, n o t th e pro p er stan d ard f o r i n terv en tio n

. S ee Un ited S ta t es ex rel. Lisle v. Lyn c h

, 1 3 7 U.S. 2 8 0, 2 8 1 (1 8 9 0 ); Ken n ard v. S ta te o

f Neb ra ska

, 1 86 U .S. 3 04
, 3 0 8 (1 9 0 2 ); Jett Bro s. Distillin g Co

. v. C i t

y o f Ca rro l lto n , 25 2 U.S. 1
, 5

– 6 (1 9 2 0 ); W i lso n v. Co o k , 3 2 7 U.S. 4 7 4 , 4 8 0 (1 9 4 6 ).P E R U T A V

. C O U

N T Y O F S A

N D I E G O 16

courts.” United States v. City of Los Angeles

, 288 F .3d 391, 397–98 ( 9th Cir. 2002) (citation o mitted). As we h a ve noted:

B y allowing parties with a practical interest in the outcome of a particular case to intervene,

we often prevent or si m p l i fy future litig ation involving related issues; a t the same time, we allow an additional interested party to ex press its views before the court.

Id. at 398 (citation omitted).

The o pinion at issue directly involves the entirety o f California’s h andg un regu l a tion scheme, and will g reatly impact any future litig ation pertaining to the scheme’s constitutionality

. H owever, because the County has el ected
not to pursue a petition for rehearing en banc, n o ex isting party can adequately r epresent Californi a’s interests. T h e r e fore, the requirements of Rule 24(a)(2) are also satisfied.

The majority c o n cludes 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 mig ht be a dversely affected by the outcome of the litig ation.” United States v. State of Oregon
, 913 F .2d 576, 589 ( 9th Cir. 1990). Y et this is ex actly what California has d one. I t was not until the majority decision was filed that San D ieg o Cou n t y i n d icated it would n o long er defend the

case. More importantly

, until the majorit y o pinion was issued, it was not apparent that any law or r egu l a t i o n other than the county -specific g ood c ause r equirement w as in j eopardy

. T he district court opinion focused solely on the
g ood cause requirement, an d the plaintiffs were careful toP E R U T A V

. C O U

N T Y O F S A

N D I E G O 17

arg ue that the ca se was a bout the County ’s policy

, not state reg ulation. 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 p ut on notice that its interests were at stake and would no long er be defended by the County

.

As such, this case is similar to D ay v. Apoliona

, 505 F .3d 963 (9 t h Cir. 2007). Day involved a Section 1983 action
ag ainst the O ffice of Hawaiian Affairs. T he State of Hawaii, filing as amicus but without req uesting to intervene, a rg u ed that the plaintiffs had no individual rig hts under the Hawaiian Admission Act that were enforceable under 42 U.S.C. § 1983

– a position that the defendants de c l i n e d to support. Id. at 964. The district court ag reed with Hawaii and dismissed the

case. W hen we reversed, the State of Hawaii filed a motion
to intervene t o file a petition for rehearing en banc because the Office o f Hawaiian Affairs had decided not to do so. W e g ranted the motion to intervene, despite the fact that “ Hawaii had the opportunity to intervene in this m a tter at any time during these proceeding s, both before the district court a nd before this Court on appeal.” Id.

The majority contends t h a t Day is disting uishable from this case because California did not file a n amicus brief. B ut California h a d n o n e ed to seek a role in this case until now. I n this way , the case for intervention in Day w as in fact weaker than the one presented h e r e , because the defendants in Day had declined “ from the beg inning ” to defend the State of Hawaii’s position, while the plaintiffs cl e a r l y asserted a theory impacting the State. I d

. at 965. Here, the County defended the policy in full b ef o r e both this Court and the district court, a

nd the plaintiffs attempted to craft a case that would avoid impacting California reg ulation.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 18

There can be no doubt that California has a “sig nificant
p rotectable interest,” Donnelly v. Glickman

, 159 F

. 3d 40 5
, 410 (9th Cir. 1998), i n defending the constitutionality of its laws and reg u lations r eg a

rding handg u ns and the safety of its citiz ens. T hese laws an d r e g ulations 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 c ircumstances of this case, Cali fornia’s motion is timely

. T he plaintiffs will not b e prejudiced if Californ i a is permitted to interve ne – indeed, the plaintiffs did not object
to allowing Cal i fornia to intervene under Rule 24(a)(2). Therefore, California h as a righ t to intervene under Rule 24(a).

I I

Even if California did not have a rig ht to intervene under Rule 24(a), we should g rant the State’s alternative request for permissive intervention under F ederal Rule of Civil Procedure 24(b). Rule 24(b) permits p e r missive 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 indep e n d e n t g round for jurisdiction, (2)

a timely motion, and (3) a common q u es t i o n of law or fact. Blum v. M

errill Lynch Pierce Fenner & Smith Inc.
, 712 F .3d 1349, 1353 (9th Cir. 2013).

F ederal question jurisdiction ex ists, and California is not

r a i s ing any new claims. Therefore, the independent jurisdictional r e quirement is satisfied. Freedom from Religion Found., Inc. v. Geithner

, 644 F

. 3d 836, 844 ( 9th Cir. 2 0 1 1 )

. As discussed, the motion is timely u nder t h e circumstances presented by the case, and there is no question
t h a t there are common issues of fact and law. T heref o r e,P E R U T A V

. C O U

N T Y O F S A

N D I E G O 19

California has satisfied the requirements for permissive intervention. Moreover, the plaintif fs (as well as the defendants) do not oppose permissive interve n t ion. Given the stakes at issue in this case, we should g rant perm i s s ive intervention upon deny

ing intervention as of rig ht.

I I I

F inally

, there is an a d d itional, independent g r ound for
g ranting California’s motion to i ntervene. I n my dissent to the pan e l o p inion, I ex p ressed the view that the plaintiffs should have been r e q u i r ed to comply with F ederal Rule o f Civil Procedure 5.1. Peruta v. County of San Diego
, 742 F .3d 1144, 1196 (9th Cir. 2 014) (Thomas, J
., dissenting ). “Under that r ule, i f the state or one of its ag e nts is not a party to a federal court proceeding

, ‘[ a ] party that files a pleading

. . . d rawing into question the constitutionality of a

. . . st a t e statute must promptly ’ serve the state’s a ttorney g eneral with notice of the pleading and the c o nstit u tional q uestion it raises.” I

d

. ( q u o ting F e d

. R. Civ. P. 5.1(a)). W h en constitutional issues are r aised, the r u l e also requires the district court to certify to the state’s a ttorney g eneral that the constitutionality of the state statute h as b een questioned, a nd permit the state to in t er v e ne to d e f end it. F ed. R. Civ. P. 5.1(b), (c).

I f proper c ertification to the attorney g eneral is not made in the district court, then the remedy on appeal is e i t h e r to allow intervention on a

ppeal or vacat e t h e decision a nd remand to the d istrict court to allow intervention. Oklahoma

ex rel. Edmondson v. P ope , 516 F .3d 1214, 1216 (10 t h C i r. 2008). H ere, we d o not ne ed to g o so far as to vacate the de ci s i on and remand the case, a s the Tenth Circuit did.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 20

I nstead, the p roper remedy is to allow California to intervene on appeal to defend its interest.

I V

I n sum, California’s motion is t i m e ly

, and it should be afforded the rig ht to intervene on appeal under F ederal Rule of Civil P r ocedure 24(a). Alternatively

, we should g rant its motion for permissive intervention under Rule 24(b). F inally

, the failures under Rule 5.1 of the plaintiffs to name the State and the d istrict c ourt to certify th a t constitutional questions

were at issue r equire us to a llow intervention on appeal to correct that error.

I respectfully

dissent. 2

2 If Calif o rn i a i s g ran t ed in terv en tio n , I w o u ld also v o te to g ran t th e B rad y Cen ter to P rev e n t G u n Vio len ce’ s m o tio n f o r p erm issiv e in terv en tio n

. I w o u ld also co n stru e th e petitio n f or reh earin g en b an c f

iled b y th e Calif

o rn i a P o lice Ch ief

s’ A sso ciatio n an d th e C alif o rn i a P e a c e Of f icers’ A sso ciatio n as a m o tio n f o r perm issiv e in terv en tio n an d g ran t th e

m o tio n

.