Update May 3, 2014 – Drake published a supplemental brief on the Peruta decision on February 25th. No one, except for the 9 justices who meet in secret conference, knows why Drake was relisted. Given that SCOTUS has denied every cert petition which involves concealed carry, it is not unreasonable to surmise that the 9th Circuit Peruta decision has played a significant part in why Drake was not denied cert outright. I have published an article on the ramifications of the 9th Circuit May 1st Order in Peruta as has James Ching at Law.com. If you likewise surmise that the 9th Circuit decision in Peruta is relevant to the Drake cert petition, it would not hurt to become familiar with the Peruta case by clicking here and reading the pleadings.
Update May 2, 2014 – The US Supreme Court has closed for the day without issuing any orders and so we will not know the outcome of Drake until Monday morning at 6:30am PST. If the relisting of Drake is because of the Peruta decision then Drake may very will be relisted again. More so because of the May 1st Order in Peruta suggesting that the Peruta decision may be rendered moot and vacated.
Update April 28, 2014 – Drake has been relisted again:
|Apr 2 2014||DISTRIBUTED for Conference of April 18, 2014.|
|Apr 21 2014||DISTRIBUTED for Conference of April 25, 2014.|
|Apr 28 2014||DISTRIBUTED for Conference of May 2, 2014.|
Update April 21, 2014 – Drake v. Jerejian has been rescheduled for the Conference of April 25, 2014. A snapshot of how the “cert pool” works is this. If no justice shows an interest in a case then it is placed on the “dead list” and automatically denied after it is scheduled for conference. If at least one justice shows interest in a case then it is reviewed in conference. The reason Drake was postponed today could be because of the 9th CCA cases or it could simply be because the justices did not get around to voting whether or not to take the case last Friday. It takes the vote of 4 justices to agree to hear a case.
Drake was one of 13 cases redistributed from last Friday’s conference.
Update April 18, 2014 – Today is the day the nine justices of the US Supreme Court decide whether or not to grant the cert petition, deny the cert petition or postpone the decision to a future date. We will know the court’s decision on Monday.
Update April 2, 2014 – The Federal docket now shows a couple of updates. Alan Gura’s reply brief was filed yesterday and today the case was distributed for conference on April 18th. Curiously, Kachalsky and Woollard were likewise scheduled, neither of which made it past the first conference and neither of which did the Supreme Court request a Brief in Opposition. This is Alan Gura’s third time at bat where he keeps making the same arguments and where he keeps missing. We should know on April 21st whether or not this is strike three for Gura and the SAF.
Update March 14, 2014 – 1 – Although the docket still doesn’t show a BIO, here is a Brief in Opposition which is appearing at various websites. Here is the Supplemental Brief filed by Gura regarding the Peruta case. Here is a link to the Drake case page on SCOTUSblog. Assuming that Gura files his Reply Brief on the 28th then the case could be reviewed in conference as early as April 4th with a decision on whether or not to grant cert posted the following Monday. After reviewing the rules of the court it would be in Gura’s interest to file his Reply Brief before the 28th. The timing of his Reply Brief does not affect the day his cert petition and brief in opposition are distributed for a particular conference day.
Update March 14, 2014 – The Drake docket shows neither a waiver nor a BIO filed. Today is the deadline. I called the SCOTUS PIO and after getting past the machine and transferred to a “human” another machine came online and told me nobody was available, and to call back latter. It then disconnected. No BIO (Brief in Opposition) plus no response requested equals automatic denial of cert.
Update March 11, 2014 – Three days before the deadline to file a Brief in Opposition (BIO) to the cert petition and the Supreme Court still has not requested one to be filed. Sorry folks, Drake goes on the “dead list” for automatic denial of cert.
Update March 4, 2014 – Here we are ten days before the deadline to file a Brief in Opposition (BIO) to the cert petition and the Supreme Court still has not requested one to be filed. BIOs are optional. Typically, a waiver to file a response is filed in lieu of a BIO. Failure to request a BIO indicates a lack of interest by the High Court. Cert petitions without a BIO and which did not have a BIO requested are invariably denied. Even cases in which a BIO was requested are often denied but the combination of no BIO and no request for one by the Court is fatal. It is highly unlikely the Court is going to request a BIO this late in the day.
Update February 28, 2014 – Alan Gura filed a supplemental brief in Drake v. Jerejian. I can only assume it is in regards to Peruta v. San Diego. The US Supreme Court still has not requested a Brief in Opposition (BIO). If no BIO is requested then the chances of cert being granted are somewhere between nil and none.
I’ve created this page because the Second Amendment Foundation (SAF) petition for certiorari in Drake v. Jerejian went from dead on arrival to having a possible heartbeat with the recent 9th Circuit Court of Appeals decision in Peruta v. San Diego which was published on February 13, 2014.
The Drake case is for all intents and purposes a rehash of Kachalsky v. Cacase and Woolard v. Gallagher. The US Supreme Court denied cert in both of those cases and but for the Peruta decision, the High Court would have undoubtedly denied cert to Drake as well. It still may.
The Cert Petition in Drake was filed on January 9, 2014 after being granted two extensions in time to file the petition by Justice Alito. The Court ordered an extension of time to file the response to March 14, 2014 which means that even if cert is granted, which is still unlikely, the case will not be heard until next term and a decision would likely not be forthcoming until June of 2015, if at all.
To read the Petition for Certiorari in Drake v. Jerejian, click here.
To read the BRIEF OF JUDICIAL EDUCATION PROJECT AS AMICUS CURIAE IN SUPPORT OF PETITIONERS filed in support of Drake v. Jerejian, click here.
To read the AMICUS CURIAE BRIEF OF CENTER FOR CONSTITUTIONAL JURISPRUDENCE IN SUPPORT OF PETITIONERS filed in support of Drake v. Jerejian, click here.
To read the BRIEF OF AMICI CURIAE CATO INSTITUTE AND MADISON SOCIETY FOUNDATION IN SUPPORT OF PETITIONERS filed in support of Drake v. Jerejian, click here.
To read the BRIEF OF MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF THE PETITION FOR A WRIT OF CERTIORARI filed in support of Drake v. Jerejian, click here.
To read the Brief Amicus Curiae of Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center in Support of Petitioners filed in support of Drake v. Jerejian, click here.
To read the BRIEF OF AMICUS CURIAE NATIONAL RIFLE ASSOCIATION OF AMERICA, INC. IN SUPPORT OF PETITIONERS filed in support of Drake v. Jerejian, click here.
To read the AMICUS BRIEF OF WYOMING, ALABAMA, ALASKA, ARIZONA, ARKANSAS, FLORIDA, GEORGIA, KANSAS, KENTUCKY, LOUISIANA, MICHIGAN, MISSOURI, NEBRASKA, NEW MEXICO, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA AND WEST VIRGINIA IN SUPPORT OF THE PETITIONERS filed in support of Drake v. Jerejian, click here.
Don’t be impressed by the number of Amicus Briefs filed in this case. Statistically, cert petitions with Amicus briefs are more likely to be granted than those without but not by a wide margin. The better indicator is whether or not the Supreme Court asks for a response. If no request for a response is made then the case is D.O.A. and the Supreme Court still has not asked for a response in Drake v. Jerejian.
Here is the SCOTUSblog link to Drake v. Jerejian.