Many years ago, a wise, white-haired, old lawyer told me that lawsuits are not won because you have the law on your side. Lawsuits are lost by the guy who makes the first fatal procedural error.
That is why I spent well over a year preparing before I filed my California Open Carry lawsuit in November of 2011, and that is why my lawsuit is still standing today. I haven’t made a fatal procedural mistake. When the State’s attorney argued to the Court of Appeals that it could affirm the 2014 judgment of the district court on any grounds, the State’s attorney did not, and could not, point to any grounds by which the three-judge panel could have affirmed.
And so you can imagine my surprise when, after receiving an email PACER notification yesterday, I read the “briefs” and final judgment in this civil lawsuit challenging California’s silencer ban. The Order read:
ORDER FILED. Lisa B. Fitzgerald, Appellate Commissioner.
The court is inclined to appoint pro bono counsel to represent appellant in this appeal. Appellant may file a written objection within 14 days. If appellant does not object, the court will appoint counsel and set a new briefing schedule. [Entered: 02/03/2025 02:36 PM]
This is both impressive and curious.
The Order states, “The Court is inclined…” The Court is a three-judge panel that was picked long ago. Three-judge panels are formed long before they are assigned a particular case on appeal. Internally, two rosters of three-judge panels are formed. One roster consists of judges who will hear cases that will dispose of cases in unpublished memorandum opinions. The other roster consists of judges who will decide cases on the merits, via published, precedential opinions.
Each appeal goes through an internal screening panel of staff attorneys and judges. Most appeals are disposed of without any opinion being published because they suffer from some fatal procedural defect, such as filing a late notice of appeal.
Those cases that survive the initial screening process are assigned to a panel on one of the rosters.
In this particular case, it could have been assigned to a panel on either roster. But regardless of which roster the screening panel assigned it to, at least two judges think the case should be decided in a published, binding opinion.
That doesn’t mean the case will result in a published, binding opinion, but it is far more likely than not, given that the panel has, sua sponte, decided to appoint pro bono counsel to represent the Plaintiff-Appellant in his appeal.
Of course, the panel’s choice of pro bono counsel will strongly hint at how they will ultimately decide the case. Pro Bono counsel appointed by the Court of Appeals typically consists of law students, with predictable results. This is, after all, the 9th Circuit Court of Appeals, not the United States Supreme Court. When SCOTUS appoints counsel to represent an unrepresented litigant, that counsel is assured to be competent and assured to be one who will aggressively argue the case for his client regardless of the attorney’s personal views.
Legally, in this Circuit, a complaint can't be dismissed with prejudice unless it is incapable of amendment. This case is appealing a 12(b)(6) dismissal with prejudice. The district court judge held that silencers are not arms and granted the motion without leave to amend. The district court also said it was a facial challenge. Facial or as-applied doesn't really factor into the dismissal, but if the three-judge panel holds that silencers are arms and an as-applied challenge would be dispositive, or a factual record must be developed, then amending the complaint to file an as-applied challenge and/or develop the facts is sufficient grounds alone for a reversal and remand.
However, a facial challenge presents a pure question of law and can be decided by the Court of Appeals without a remand. If Mr. Sanchez prevails, then this will be a case in which District Court Judge Robert S. Huie is the one who made the fatal procedural mistake.
I’ve alerted two Second Amendment lawyers about the case and asked them to spread the word amongst their fellow 2A lawyers if they can’t take it.
Here are the CourtListener links where you can read the filings for free.
District Court link.
Court of Appeals link.