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Duncan en banc- What Happens Next?

CALIFORNIA ATTORNEY GENERAL SEEKS DO-OVER IN NINTH CIRCUIT CASE CHALLENGING STATEWIDE BAN ON STANDARD CAPACITY MAGAZINES

As reported earlier, a three-judge panel of the Ninth Circuit recently held that California’s ban on standard capacity magazines is unconstitutional in the CRPA-supported lawsuit Duncan v. Becerra. The decision stuck down California’s statewide prohibitions on such magazines and, in doing so, upheld a 2019 decision from the United States District Court in San Diego that resulted in hundreds of thousands—if not millions—of such magazines being lawfully purchased by California gun owners.

In line with the state’s long history of refusing to let a pro-Second Amendment decision stand, California Attorney General Xavier Becerra today filed a petition asking to have a larger 11-judge “en banc” panel rehear the case.

Now that the petition for a rehearing has been filed, the panel may order the prevailing appellees to respond and you can generally expect the court to take one of the following actions.

• 5.4(b) Notice Request: Any judge of the Ninth Circuit who was not on the three-judge panel can request notice of the panel’s vote on a petition for rehearing within 21 days. This request requires the panel judges to inform the rest of the active judges on the circuit whether they vote to rehear the case en banc or if they decide to amend their opinion–ordinarily no later than 90 days after the notice.

• Call for En Banc Vote: Any interested off-panel judge may call for an en banc vote by the judges of the circuit either (1) in response to notice of the panel’s vote that a petition for rehearing has been denied or (2) “sua sponte.” Once a call has been made, if we have not already been ordered to respond to the petition, we will be given the opportunity to respond at this time. And the judges will exchange memoranda in favor of or opposition to rehearing before a vote is taken. This process takes several weeks.

• Do Nothing and Reject the Petition: If no action is taken by any judge of the Ninth Circuit within 21 days of the receipt of the petition for rehearing, the panel will enter an order rejecting it. At that point, the only options left for the Attorney General would be to appeal the panel’s decision to the United States Supreme Court or accept it.

Should the Ninth Circuit grant the Attorney General’s petition, the three-judge panel opinion will no longer have precedential effect in the Ninth Circuit or any district court of the circuit. In other words, it would be as if the three-judge panel decision never existed. We must then wait for the decision of the en banc court.

Make sure you are subscribed to CRPA email alerts to keep up-to-date regarding any developments in the Duncan lawsuit, including what actions the Ninth Circuit takes on the pending en banc petition. And be sure to visit the CRPA website at www.CRPA.org for the latest Second Amendment related news affecting California gun owners.

1 At any time during this already lengthy process, any judge may “stop the clock,” extending the date by which the Ninth Circuit must act on the petition by 14 days. The clock may only be “stopped” once, however.