Silvester, et al. v. Harris, et al.

Filing 102

ORDER on Motion to File an Amicus Curiae Brief 101 , signed by District Judge Anthony W. Ishii on 7/22/14: Center's motion is DENIED. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFF SILVESTER, et al.,

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CASE NO. 1:11-CV-2137 AWI SKO

Plaintiffs
ORDER ON MOTION TO FILE AN
AMICUS CURIAE BRIEF

v.
KAMALA HARRIS, Attorney General of
California, and DOES 1 to 20,

(Doc. No. 101)

Defendants

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This case challenges the constitutionally of various state law firearm laws. The Court has

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taken live testimony and admitted evidence as part of a bench trial. Currently, the parties have

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filed proposed findings of fact and conclusions of law, and closing arguments for the bench trial

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are set for August 15, 2014. On July 21, 2014, the Brady Center to Prevent Gun Violence (“the

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Center”) submitted a motion to permit it to file an amicus curiae brief in support of Defendant.

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The Center states that Defendant consents to the filing, but that Plaintiffs have indicated that they

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will not consent.

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It has been recognized that district courts have the inherent authority to permit and

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consider amicus curiae briefs, even though such briefs are not specifically provided for in the

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Federal Rules of Civil Procedure. See In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233,

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1249 n.34 (11th Cir. 2006). Nevertheless, the Center’s motion is not well received. The posture

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of this case is that of a bench trial in the final stages. The Court is in the process of assessing

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evidence, witnesses, and arguments. Permitting the Center’s amicus brief would not aide the

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Court, would be without the consent of all of the parties, would insert a new element in the case at

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a time that is well beyond the eve of trial, and would cause a further delay in proceedings in a

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court that has a heavily impacted docket.1 The Center cites neither case law nor a provision of the

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Federal Rules that would permit the filing of an amicus brief in this situation.2 While the Court

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appreciates the interest in this case, the Court will not consider or permit the amicus brief to be

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filed.
Accordingly, IT IS HEREBY ORDERED that the Center’s motion to file an amicus curiae

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brief (Doc. No. 101) is DENIED.

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IT IS SO ORDERED.
Dated: July 22, 2014
SENIOR DISTRICT JUDGE

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This is true of any amicus brief, not just the brief filed by the Center.

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Federal Rule of Appellate Procedure 29 permits the filing of amicus briefs. However, under FRAP 29, the proposed
amicus brief is not timely. Under FRAP 29(e), a motion to file an amicus brief (along with the brief itself), must be
filed within 7 days of the principal party’s brief that is being supported. Here, the Center is filing a brief that would be
in support of either a memorandum or a proposed findings of fact that were both filed by Defendant on June 16, 2014.
The July 21 proposed amicus brief is well beyond the 7 day limit. Cf. Fed. R. App. P. 29(e).

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