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Thread: UPDATE ON SAN DIEGO CCW LAWSUIT

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    NRA/CRPA FOUNDATION LEGAL ACTION PROJECT SUPPORTS LEGAL CHALLENGE TO SAN DIEGO POLICY ON CARRYING CONCEALED FIREARMS

    Tuesday, May 11, 2010

    Attorneys for the California Rifle and Pistol Association Foundation and several individual plaintiffs recently filed an amended Complaint in U.S. District Court in San Diego challenging San Diego Sheriff William Gore’s policies in issuing permits to carry concealed firearms. The lawsuit alleges that San Diego’s policies are illegal and unconstitutional in multiple respects, one of which is that they infringe of the fundamental individual right to keep and bear arms guaranteed by the Second Amendment. The lawsuit seeks to stop San Diego’s arbitrary and capricious denial of permits to law abiding county residents.

    The case challenges the application of California Penal Code section 12050, which allows a sheriff or police chief to issue a permit where “the person applying is of good moral character, that good cause exists for the issuance,” and that the person is a resident of that county. Under this law, sheriffs and chiefs of police often implement subjective standards for “good cause,” as well as residency requirements that are not constitutionally permissible. The Complaint was originally filed in October 2009 by a local activist. It survived a motion brought by the County to dismiss the case. In the Order denying that motion, the Judge confirmed that the constitutional claims were valid, and that the County’s arbitrary permit issuance policy may very well be unconstitutional. The amended Complaint adds both more plaintiffs and more legal claims for relief. Documents relating to the case are posted at http://www.calgunlaws.com.

    The lawsuit is being funded by the NRA / CRPAF Legal Action Project (LAP). LAP is a joint venture between the Nation Rifle Association (NRA) and the California Rifle and Pistol Association (CRPA) to advance the rights of firearms owners in California. Through LAP, NRA/CRPA attorneys fight against ill-conceived gun control laws and ordinances, and educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners.

    Right to carry a concealed handgun passes hurdle - Part 2

    May 12, 4:25 AM LA History Examiner Charles Nichols

    As I mentioned inPart 1, the Court has not decided on the Constitutionality of Section 12050 (license to carry) but the reasoning put forward in the denial of the motion to dismiss is telling. I reported on the motivation behind the1923 California lawrequiring a permit to carry a concealed weapon in public and its unintended consequence of becoming a ban its proponents wished to forestall inPart 1as well.

    InLos Angeles City and County, as in every other in the state, the government issues permits to carry a concealed weapon at its whim. Those permits that are issued are usually given to political cronies, friends, relatives and significant donors to campaigns of those who issue the permits.

    Last year, Edward Peruta applied for a permit to carry a concealed handgun from the San Diego County Sheriff's Office and was denied for not having "good cause." Peruta then sued both the County of San Diego and the Sheriff individually, in Federal Court under the Civil Rights Act of 1871, specifically 42 USC 1983.

    The Defendant Sheriff William Gore made a motion to dismiss which the court denied. The denial is 18 pages long so I'll just touch on some of the highlights. Keep in mind that this was just a dismissal of the Sheriff's motion, it isn't an opinion that Californians have a right to carry a concealed handgun but the reasoning given by Judge Irma E. Gonzalez Chief Judge of the United States District Court Southern District of California reads like an outline of a decision in favor of the right. Fortunately, in his motion to dismiss, Sheriff Gore based his dismissal, in part, on the 2nd Amendment to the Bill of Rights and the Heller decision of 2008. If Sheriff Gore did not have a history of denying persons permits to carry concealed weapons one might suspect that he was working in cohorts with the plaintiff.[/b] But we have to remember that a major part of the District of Columbia's oral argument before the US Supreme Court was an English Law banning Catholics from keeping and bearing arms. The five justices that voted in favor of the individual's right to keep and carry arms in the Heller case are Catholic. Lawyers can be a client’s worst enemy.

    In denying the motion to dismiss, the Court found on the question:

    1)The Right to Bear Arms- "The Supreme Court's decision in Heller made it clear - for the first time - that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation." "The US Supreme Court didnothold that all concealed weapon bans are presumptively constitutional because in those states which had enacted a ban on concealed carrythe people had a right to openly carry loaded handgunsand "...unlike Californiathere is a ready alternative available to the affected individuals - the right to carry weapons openly if they cannot obtain a concealed weapon's permit."

    2) Level of scrutiny[/b] - "At this stage of the proceedings the court need not decide which heightened level of scrutiny applies because the government has failed to meet its burden of proof even if the court applies the more lenient standard of intermediate scrutiny." Under both "strict scrutiny" and "intermediate scrutiny"the burden is on the government to show that the challenged law is constitutional, by demonstrating that the law is either "narrowly tailored tailored to serve a compelling state interest, or necessary to further an important government interest." "...the government has made little effort to defend the statutes constitutionality under either of the heightened levels of scrutiny."

    3) Applicability to the Plaintiff[/b] -"The Supreme Court has explained that the natural meaning of " bear arms" is to "wear, bear or carry...upon the person or in the pocket, for the purpose...of being armed and ready for offensive or defensive action in a case of conflict with another person."According, by imposing a good cause requirement before a concealed weapon's permit can be issued, the state undoubtedly infringes Plaintiff's right to "possess and carry weapons in cases of confrontation."

    Why this case affects Los Angeles County as well is because we are in the jurisdiction of the judges court. It is also relevant because the plaintiff also challenged the constitutionality of the residency requirement[/b], the unequal treatment and the restriction the residency requirement places on a person’s right to travel[/b]. The plaintiff frequently travels and lives in a motor home inside of the County four months out of the year. The court found a distinction between persons who are just passing through and those whose presence is more than "temporary or transitory." Part time residency is sufficient to be counted as a resident for the purpose of obtaining the license.[/b] The full time residency requirement must pass the "strict scrutiny" standard to be constitutional, which the government has so far failed to do.

    Assuming the government is unable to meet the intermediate or strict scrutiny requirements (the court explicitly rejected the lowest standard of scrutiny) it is easy to see how this denial of a dismissal would play out as an opinion.[/b]

    My analysis based upon the denial of the defendant's motion to dismiss.

    If California denies the right to openly carry a handgun (which it does) then it must provide a license to carry one concealed. One can travel throughout the country most of the year, or live in a different state for most of the year, part time residency is all that is required to obtain a license to carry a concealed weapon[/b]. Every resident of the state, or at least within the jurisdiction of the court, must be treated equally when it comes to issuing a license to carry concealed. You must be treated equally with any other "similarly situated" person (full or part time resident). The only bad news appears to be for persons who are just passing through the state. Hopefully the court will recognize the inherent contradiction in a citizen of the United States having a right to keep and bear arms up until he steps into a state like California which doesn't allow the open carry of concealed weapons.

    The irony of the first Federal woman judge of Mexican descent (and a Clinton appointee) potentially torpedoing the effort of Assemblywoman Lori Saldana's gun ban (AB1934) has not escaped me. One would hope the same would be true of Elena Kagan but her association with Judge Abner Mikva pretty much sums up what we can expect from her. More on that in a future article.

    CASE NO 09-CV-2371-IEG (BLM) EDWARD PERUTA vs COUNTY OF SAN DIEGO; and WILLIAM D. GORE; individually and in his capacity as sheriff.






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    Ed,
    Its good to hear from you, I know many of us have been pondering your status on a daily basis.

    That was an excellent article, it lays it all out there, and even though it has a heavy slant towards gun owners (bout time), its very factual.
    When its all said and done I'm pretty confident your case is going to have even more weight and importance in securing our rights.

    2 thumbs up to this Charles Nichols character and a million to you, Ed.

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    I've been watching for an update on your case for a while now, thanks for posting it. Good to see you around again.

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    I came across OCDO largely due to the notariaty of Eds' case and have been impressed with the dilligence and spirit applied to securing ones rights.

    Thanks Ed, God bless you.DEFENSOR

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    Founder's Club Member MudCamper's Avatar
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    Glad to hear you've got some more of the big hitters joining your team Ed. Thanks, and keep up the good work!

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    Yeah ED, I been wondering about your case Ed, thanks big time for the update !

    Your a real Patriot Ed ! :celebrate Robin47

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    Thanks for the update, it's good to see this case is still going as many of the key points personally affect me (CCW permit and the "residency" restriction).

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    Thanks for the update Ed, Glad too hear more on your part in our righteous war.
    I am not anti Cop I am just pro Citizen.

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    Edward Peruta wrote:
    NRA/CRPA FOUNDATION LEGAL ACTION PROJECT SUPPORTS LEGAL CHALLENGE TO SAN DIEGO POLICY ON CARRYING CONCEALED FIREARMS

    Tuesday, May 11, 2010
    How, if at all, might the defeat of Gore in the coming election affect the Case?

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    the only way it could, is if the aplicants was able to get his CCW withthe new sheriff, and then decided to drop the case.

    which I doubt, either would happen before the case comes to a close

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    What is the next milestone in this case? Is there another hearing date, or ???
    Virginians - Have you joined http://www.vcdl.org/ ?

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    I also would like to know if there are any updates to this case.

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    Now that McDonald went our way... when does this case power forward and smash through all opposition? I cannot wait to file a CCW application they'll have to accept, even if I may not be in CA for much longer.

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    Well, this should get interesting.

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    Regular Member Don Tomas's Avatar
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    Just goes to prove, if you stick around long enough you just might learn something. I had no idea there was a CCW case being tried in San Diego. However, I'm happy to learn of the details from this thread. Thanks for posting it. I look forward as does everyone else to hearing the outcome and how it will apply to other cities across the state (more specifically Orange County Sherrif's Dept).

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    Quote Originally Posted by Don Tomas View Post
    Just goes to prove, if you stick around long enough you just might learn something. I had no idea there was a CCW case being tried in San Diego. However, I'm happy to learn of the details from this thread. Thanks for posting it. I look forward as does everyone else to hearing the outcome and how it will apply to other cities across the state (more specifically Orange County Sherrif's Dept).
    If Ed wins his case, it will apply to all of California, and perhaps to all of the 9th circuit. If so it should give relief to those in Hawaii who are in a worse situation than California for CCWs. They may not be able to get Hawaii-issued permits immediately, but the state will have to accept out of state CCWs, if his right-to-travel petition is granted.
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    I'm curious as to whether anything new is going on with your case, Ed?

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    * May 16, 2011 Final Pretrial Conference set for 5/16/2011 10:30AM in Courtroom 01 before Judge Irma E. Gonzalez

    * December 9, 2010 Mandatory Settlement Conference Set for 09:00 AM in Courtroom 12 before Magistrate Judge Bernard G. Skomal.

    * August 6, 2010 Case Management Conference order regulating discovery and other pretrial proceedings

    * July 14, 2010 Joint Motion for Protective Order GRANTED Signed by Magistrate Judge Bernard G. Skomal

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    Check out the questions being asked of Sheriff Gore in the Admissions document. On some of them he may have to plead the fifth. Someone's got some heavy dirt on him, or so it appears.

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    The emails from his contributors who received permints should be a good read.
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The rights existence is all the reason he needs.

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    Talking Congratulations On Your One Thousand Posts

    .
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    Quote Originally Posted by Wc View Post
    .
    WOOOHOOOO!

    I won a free oven mitt.
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The rights existence is all the reason he needs.

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