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

Background

Plaintiffs challenged San Diego County’s concealed‑carry "good cause" permitting policy as violating the Second Amendment; the district court decision addressed that county policy.
On appeal, the Ninth Circuit panel issued an opinion reversing the district court and analyzed the County policy in the context of California’s statewide licensing scheme.
Sheriff William Gore, the County defendant, declined to petition for rehearing en banc; after the panel opinion, the State of California, the Brady Campaign, and two state police associations sought to intervene on appeal.
Movants sought intervention under Fed. R. Civ. P. 24 and, alternatively, asserted intervention rights under 28 U.S.C. § 2403 and Fed. R. Civ. P. 5.1 (as to state statute challenges).
The panel denied all motions to intervene as untimely, reasoning intervention on appeal after issuance of the opinion requires ‘‘imperative reasons’’ and the movants delayed despite prior notice of the case; the court also held § 2403 and Rule 5.1 did not apply because no California statute’s constitutionality was directly "drawn in question."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of intervention on appeal	Movants (CA, Brady) argued they acted promptly once it became clear Gore would not seek rehearing and their interests were threatened by the panel opinion	Court and County argued motions were filed too late—after opinion and years into litigation—and intervention on appeal is allowable only for exceptional reasons	Denied: motions untimely; stage of proceedings, delay, and reasons weighed against intervention (only lack of prejudice to parties favored movants)
Intervention under Fed. R. Civ. P. 24(a)/(b)	CA argued it has a right to intervene under Rule 24(a) (and alternatively permissive intervention under 24(b)) because its interests in state statutes and regulatory scheme are directly affected	Majority: movants failed to show ‘‘imperative reasons’’ for appellate intervention; no timely motion = no intervention	Denied: neither intervention as of right nor permissive intervention granted
Intervention under 28 U.S.C. § 2403(b)	CA and dissent argued § 2403(b) (state interest when constitutionality of state statute is drawn in question) required allowing intervention	Majority: the panel only evaluated a county policy under state statutes; no California statute’s constitutionality was directly "drawn in question," so § 2403(b) inapplicable	Denied: § 2403(b) did not authorize intervention because no state statute was directly challenged
Rule 5.1 notice/certification requirement	Dissent argued Rule 5.1 required notice to the state AG and certification, and failure to do so supports allowing intervention on appeal or remand	Majority: concluded the case did not challenge a state statute’s constitutionality such that Rule 5.1 was triggered	Denied: majority rejected Rule 5.1 as a basis for intervention; dissent would allow intervention/remand under Rule 5.1 concerns

Key Cases Cited

Day v. Apoliona, 505 F.3d 963 (9th Cir. 2007) (per curiam) (post‑opinion intervention granted where state extensively participated earlier and defendants would not defend the state’s position)
United States v. Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004) (timeliness test and rejection of cost‑saving delay as justification for late intervention)
United States v. Oregon, 913 F.2d 576 (9th Cir. 1990) (intervenor must act as soon as it knows its interests may be adversely affected)
Bates v. Jones, 127 F.3d 870 (9th Cir. 1997) (court of appeals may allow intervention on appeal only in exceptional cases)
Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003) (purpose of § 2403 is to ensure input before ruling on constitutionality of a federal statute by the United States)
Jett Bros. Distilling Co. v. City of Carrollton, 252 U.S. 1 (1920) (statute’s validity is ‘‘drawn in question’’ only when its constitutionality is directly denied)
Wilson v. Cook, 327 U.S. 474 (1946) (dispute over official’s exercise of authority under a statute does not necessarily ‘‘draw in question’’ the statute’s validity)
Int’l Paper Co. v. Inhabitants of Town of Jay, Me., 887 F.2d 338 (1st Cir. 1989) (challenge to municipal ordinance does not equate to challenging a state statute under § 2403)