Winner in California Open Carry Lawsuit seeks to Vacate the win and have it reheard en banc.
On the last day to file a petition for rehearing/rehearing en banc, both the California attorney general and the attorney for Mark Baird filed petitions for rehearing/rehearing en banc.
The petition by Attorney General Bonta was expected. It would have been a surprise if he did not file the petition, but the petition by Mark Baird’s attorney caught everyone offguard.
Initial reactions were: “Huh?” “Why?” “She’s fucking retarded.”
Whatever slim chance there might have been that AG Bonta’s petition would have been denied is gone. The 2-1 victory for the right to openly carry firearms in public will be vacated, and the case reheard before an en banc panel, a panel of judges more hostile to the Second Amendment than the three-judge panel with its lone judge who would ban Open Carry.
I get teased by some for fixating on Federal procedural law*, but it is important to note that the worst part of the Baird v. Bonta majority opinion, and the en banc petition by Mark Baird’s attorney, is California’s licensing scheme.
There is a Federal Constitutional bar that prevented the Baird v. Bonta three-judge panel from deciding whether California’s licensing scheme is constitutional; the “case or controversy” requirement from Article III, Section 2, Clause 1 of the United States Constitution.
Although Mark Baird had initially challenged California’s licensing laws, he dropped the challenge when he filed his final (operative) complaint. Despite dropping his challenge from his operative complaint, he could have challenged it in his cross-motion for summary judgment. “Could” is in italics because Federal procedural law generally bars raising new claims at the summary judgment stage. But Mark Baird’s attorney did not challenge California’s licensing laws in his cross-motion for summary judgment, nor did he state he was challenging California’s licensing laws in his notice of appeal.
Procedurally, the last opportunity to challenge California’s licensing laws was in Mark Baird’s opening brief on appeal. Any such challenge had to be distinctly raised and argued in the opening brief and its argument section. One can make the perfect case, but if it appears in a footnote or elsewhere in the opening brief other than the argument section, one loses on procedural grounds.
But even making a perfect and procedurally correct case, the Court of Appeals can only consider pure questions of law on appeal, and only if the panel of judges wants to. They never do.
Mark Baird, the lone Plaintiff-Appellant in the lawsuit, by not challenging the constitutionality of California’s licensing laws, the Court of Appeals lacked jurisdiction to rule on their constitutionality. To do so would be to issue an advisory opinion, which Federal judges do not have the authority to issue.
And so the majority opinion should not have said that Mark Baird waived his as-applied challenge to California’s licensing laws, nor should it have said that there was not enough in the record to determine whether the licensing laws are facially invalid.
Mark Baird could not have waived an as-applied challenge because he did not make one. And the reason why there wasn’t enough in the record to evaluate a facial challenge to the licensing laws isn’t that the record to the facial challenge to the licensing laws fell short; there was nothing in the record regarding a facial challenge because Mr. Baird did not raise a challenge to California’s licensing laws, facially or as-applied. The three-judge panel should not have pretended that he did.
Mark Baird’s attorney should have argued all of that, and more, in her response in opposition to Attorney General Bonta’s petition for rehearing, rehearing en banc.
Instead, she has asked the 9th Circuit Court of Appeals to vacate her win against California’s ban on openly carrying loaded firearms and California’s ban on openly carrying unloaded handguns in public. She wants to reargue her case before an en banc panel where it is statistically improbable that she will win anything.
Here are the petitions for rehearing, rehearing en banc:
Baird v. Bonta District Court filings.
* If I had not fixated on procedural law, I would have lost my California Open Carry lawsuit on procedural grounds the same year it was filed. Having the law and the Constitution on one’s side does not win a lawsuit, but making a fatal procedural error does lose one.