28 replies to this topic

[Molly B.]

Federal ruling could mean more concealed weapon permits for California
by Chris Hinyub
Wed, Nov 17th 2010

California's gun laws might become more liberal and soon. In a few weeks, Chief Federal Judge Irma
Gonzalez will render her decision in the case of Ed Peruta v County of San Diego et al, a decision
that could put a stop to “discretionary licensing” by state permitting authorities. As it stands
now, California policy enforcers decide on a whim who can and cannot obtain a license to carry a
loaded firearm in public. If Ed prevails in his case, California could join the ranks of “shall-
issue” concealed carry permit (CCW) states.

When Ed Peruta, a part-time resident of the state, applied for a concealed handgun permit last
year, the San Diego County Sheriff denied his request, citing no “good cause.” Peruta sued the
Sheriff's department and the Sheriff individually in Federal Court under the Civil Rights Act of
1871, namely 42 USC 1983.

The sheriff promptly filed a motion to dismiss the case, but Judge Gonzalez issued an 18 page
decision in January which not only denied the motion but indicated a few points of law which, if
carried to their logical conclusion in December, will end the arbitrary licensing process for those
seeking open and concealed carry permits in counties with a population of 200,000 or fewer.

     “If the judge adopts the extreme minimalist case then, at a minimum, a CCW license becomes
non-discretionary, meaning if one has the money and can pass whatever training requirements the
issuing authority decrees then one must be issued a license to carry a weapon concealed, or a
license to openly carry a loaded weapon in counties with a population of fewer than 200,000
people,” writes gun-law expert Charles Nichols. . .

Gonzalez's most important conclusion in her opinion to dismiss the Sheriff's motion was in line
with the Heller v. DC verdict, which reaffirmed we have a constitutionally protected right to
carry loaded firearms in public for self-defense purposes.

[oneshot]

[xbaltzx]

What about counties with more than 200k population...

[lockman]

xbaltzx, on 18 November 2010 - 11:14 AM, said:

What about counties with more than 200k population...

You would still be issued the license but they could limit you to concealed carry of a loaded handgun. You would still be able to carry an unloaded handgun openly.

[xbaltzx]

lockman, on 18 November 2010 - 01:15 PM, said:

xbaltzx, on 18 November 2010 - 11:14 AM, said:

What about counties with more than 200k population...

You would still be issued the license but they could limit you to concealed carry of a loaded handgun. You would still be able to carry an unloaded handgun openly.

Ok, got it. Thanks. I have always wanted to CC in SF.

[mstrat]

Quote

Gonzalez's most important conclusion in her opinion to dismiss the Sheriff's motion was in line
with the Heller v. DC verdict, which reaffirmed we have a constitutionally protected right to
carry loaded firearms in public for self-defense purposes.

I think I know the (sad) answer to this, but I'll ask anyway in case others have more insight.

Could this give us *any* leverage in a court case in IL? Or be used as leverage in may-issue states?

If a CA judge rules that may-issue is in violation of their citizens' rights, in light of federal rulings, does that help?  Note they are obviously not using California law as the precedent, since CA law is what allows them to deny citizens' rights in the first place.

[lockman]

mstrat, on 18 November 2010 - 02:36 PM, said:

Quote

Gonzalez's most important conclusion in her opinion to dismiss the Sheriff's motion was in line
with the Heller v. DC verdict, which reaffirmed we have a constitutionally protected right to
carry loaded firearms in public for self-defense purposes.

I think I know the (sad) answer to this, but I'll ask anyway in case others have more insight.

Could this give us *any* leverage in a court case in IL? Or be used as leverage in may-issue states?

If a CA judge rules that may-issue is in violation of their citizens' rights, in light of federal rulings, does that help? Note they are obviously not using California law as the precedent, since CA law is what allows them to deny citizens' rights in the first place.

Indirectly, The decision may be cited by plaintiff's in the other circuits but are not binding on them. It is still useful in that it may create a conflict between circuits which usually all end up before the supreme court. But a 9th circuit win would be huge for HI which would become a shall issue state from its current virtual no issue status.

[Tvandermyde]

Short answer yes. Any good trial court or appealte court on this helps the arguement

[05FLHT]

Peruta ruling in -

12/10/2010 65 CLERK'S JUDGMENT IT IS SO ORDERED AND ADJUDGED that the Court concludes that Defendant's policy does not infringe on Plaintiffs' right to bear arms or violate equal protection, the right to travel, the Privileges and Immunities Clause of Article IV, or due process. Accordingly, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendant's Motion for Summary Judgment. (lmt) (Entered: 12/10/2010)

Peruta loses.

Attached Files

•  64 - Peruta MSJ Partial Denial.pdf   226.61K   103 downloads

[05FLHT]

All I can say is WOW. I do not know what planet this judge is on, but it is out there.

[quote]Neither party has cited, and the Court is not aware of, a case in which a court has employed strict scrutiny to regulations that do not touch on the “core” Second Amendment right: possession in the home. If it exists, the right to carry a loaded handgun in public cannot be subject to a more rigorous level of judicial scrutiny than the “core right” to possess firearms in the home for self-defense.[/quote]

[quote]If anything, the opposite is true; unlike possession in the home, carrying a concealed firearm in public presents a “recognized threat to public order” and “poses an imminent threat to public safety.” [/quote]

Did she even read Heller, I am not quite sure because the core holding was that the Second Amendment protects an individual right of self defense. Todd, you called it. For some reason people are having trouble see past "inside of the home."

Then she wonderfully contradicts herself.

[quote]In this case, Defendant has an important and substantial interest in public safety and in reducing the rate of gun use in crime. In particular, the government has an important interest in reducing the number of concealed weapons in public in order to reduce the risks to other members of the public who use the streets and go to public accommodations. The government also has an important interest in reducing the number of concealed handguns in public because of their disproportionate involvement in life-threatening crimes of violence, particularly in streets and other public places.[/quote]

[quote]The Court acknowledges Plaintiffs’ argument that many violent gun crimes, even a majority, are committed by people who cannot legally have guns, and the ongoing dispute over the effectiveness of concealed weapons laws. See Moody Decl. But under intermediate scrutiny, Defendant’s policy  need not be perfect, only reasonably related to a “significant,” “substantial,” or “important” governmental interest.[/quote]

Or, is she confirming what has always been suspected of the liberals, the belief that GUN OWNER=CRIMINAL.

With the reasoning and dicta in Heller and McDonald, I find it utterly disgusting for the court to say "...the Court does not need to decide whether the Second Amendment encompasses Plaintiffs’ asserted right to carry a loaded handgun in public."  

I have no doubts an appeal is coming.

[Lou]

Did we really expect anything else?
San Diego= left Coast= Land Of Fruits and Nuts= Ninth Circus = the Constitution be Damned.




Sorry for the rant.    

[lockman]

Does it matter at this point, either way the case is moving on up. Round 2.

[bob]

IIRC, this guy is a bit of a gadfly, and loves to push at petty bureaucrats. But, that's what you get to work with sometimes.

I think he is the same guy who is pushing at the firearms licensing people in CT.

[lockman]

Reading through some of the comments in the opinion, it leaves me wondering if she actually read the Heller decision. If she did she has a very selective memory.

[Tvandermyde]

From over at no lawyers, only guns and money....

http://onlygunsandmoney.blogspot.com/


Judge Rules For San Diego In Concealed Carry Challenge
Judge Irma Gonzalez ruled for San Diego on Friday in Peruta v. County of San Diego. She denied the plaintiff's motion for a partial summary judgment and granted the defense's motion for a summary judgment. The case was a challenge to to how San Diego Sheriff William Gore chose to define the good clause requirement of the California concealed carry permit. He required that an applicant show more than a generalized fear for one's personal safety as a reason. Supporting documentation was also required by the sheriff.

Judge Gonzalez states that the key question in the case is whether the right to possess a handgun in one's home for self-defense extends to either concealed or open carry of a loaded handgun. In her opinion, she starts by discussing the scope of the right to keep and bear arms. She noted that the Heller decision applied a place and manner analysis to D.C.'s prohibition on handguns. As we know, the Supreme Court found that the right of citizens to have a functional firearm including handguns in the home for self-defense was fundamental under the Second Amendment. However, outside the home they noted the Second Amendment right was not unlimited.

Judge Gonzalez then examines the plaintiffs' contentions in the context of California law. Peruta maintained the under California law, the single outlet for a self-defense with a handgun was Cal. Penal Code Section 12050 with allows sheriffs to grant concealed carry licenses. After examining the California law governing open carry, both loaded and unloaded, she finds many exceptions that would permit self-defense with a handgun. Therefore, she refuses to accept Peruta's contention that Cal. Penal Code Section 12050 is the sole outlet for self-defense with a handgun outside the home and that Cal Penal Code Section 12031 places an unlawful burden on the right to carry for self-defense.


I'll post someof my thoughts later -- T

Attached Files

•  gov.uscourts.casd.308678.64.0.pdf   137.78K   84 downloads

[mstrat]

Smarter legal minds than mine may offer better insight... but to me this seems the axis, the pivotal point upon which the whole thing collapses:

Quote

The Court acknowledges Plaintiffs’ argument that many violent gun crimes, even a majority, are committed by people who cannot legally have guns, and the ongoing dispute over the effectiveness of concealed weapons laws. See Moody Decl. But under intermediate scrutiny, Defendant’s policy need not be perfect, only reasonably related to a “significant,” “substantial,” or “important” governmental interest.

(emphasis added)

She basically admits that her ruling won't hold up under strict scrutiny.  

According to wikipedia (admittedly not the best source, but I have little reason to doubt this)... Strict scrutiny applies
'when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the "liberty" or "due process" clause of the 14th Amendment;'

I just don't understand how McDonald and Heller require strict scrutiny whereas this case does not.  Is my life less valuable outside of my home? Is the U.S. Constitution or Bill of Rights prefaced by some fine-print that reads "not valid outside your home" ?

[05FLHT]

mstrat,

She blew the hole thing.

Quote

Neither party has cited, and the Court is not aware of, a case in which a court has employed strict scrutiny to regulations that do not touch on the “core” Second Amendment right: possession in the home. If it exists, the right to carry a loaded handgun in public cannot be subject to a more rigorous level of judicial scrutiny than the “core right” to possess firearms in the home for self-defense.

The core holding in Heller was that the Second Amendment protects an individual right of self defense. The "core" Second Amendment right is not and was never implied to be only "in the home." Judge Gonzales clearly follows her own liberal ideology and completely ignored the reasoning and dicta in both Heller and McDonald. The evidence is glaring.

[mauserme]

I posted a copy of the Congress of Racial Equality brief in the Back Room thread but want it here, where nonmembers can find it too.

Illinois legislators should read this.   Here's an excerpt:

Quote

CORE's interest in this case stems from the fact that the Second Amendment right to keep and bear arms for self defense is an important civil right that was denied to African Americans under the antebellum Slave Codes, the Black Codes passed just after the Civil War, and under the Jim Crow regimes that persisted into the twentieth century.

Attached Files

•  Peruta CORE Brief.pdf   6.14MB   69 downloads

[spec4]

So if this liberal socialist judge gets overturned in appellate court, won't that be even better for our cause?

[TTIN]

I want to know where this "only in the home" crap got started,and why are judges et al referencing this B.S.?

[mstrat]

TTIN, on 27 May 2011 - 09:09 AM, said:

I want to know where this "only in the home" crap got started,and why are judges et al referencing this B.S.?

That's a big chunk of what the Williams writ of cert is about.  http://illinoiscarry...showtopic=25723

Hopefully the SCOTUS will soon put an end to this nonsense.

[bob]

I think she actually got it right. There is nothing that would allow a judge at her level to rule in any other way. Appellate courts above her have ruled pretty consistently against the 2A.

She may or may not be a socialist, pro or anti gun, but I doubt she could have honestly ruled any other way. A judge at her level is bound to the decisions of the courts above her whether she approves of them or not.

The way these things work is that judges at lower levels just do not make many ground breaking decisions. They decide based on what the law says and what higher courts have decided. That is the way they are supposed to function, and mostly that is how they do function.

No higher level court has ruled strict scrutiny applies to the 2A, and no higher court precedent holds that a state can be forced to issue a LTC to someone the state considers unsuitable (in this case a non-resident). On what basis is she going to rule any other way?

If you want lower courts to take the 2A seriously, SCOTUS is going to have to say strict scrutiny applies. So far they have not even come close, although there is some non-binding verbiage in the decisions that leans that way.

Personally, I think this is a better equal protection argument than a 2A argument, but being as CA is MI, even if he won the EP argument, he may still get no permit, and probably would not in SD county. Its one of the dryer counties, permit wise. OTOH, if he won on EP grounds, he could go to any sheriff and there are a bunch of sheriffs that issue on a SI basis, so that would effectively make CA a SI state for non-residents, although I don't know what it would mean for residents, if anything.

The 9th circuit is looked at as very liberal, but they are also somewhat of a leader and if they get the idea that the 2A really does count, you might well be very surprised at how they rule on these kind of cases.

[Federal Farmer]

bob, on 27 May 2011 - 05:09 PM, said:

I think she actually got it right. There is nothing that would allow a judge at her level to rule in any other way. Appellate courts above her have ruled pretty consistently against the 2A.

She may or may not be a socialist, pro or anti gun, but I doubt she could have honestly ruled any other way. A judge at her level is bound to the decisions of the courts above her whether she approves of them or not.

The way these things work is that judges at lower levels just do not make many ground breaking decisions. They decide based on what the law says and what higher courts have decided. That is the way they are supposed to function, and mostly that is how they do function.

No higher level court has ruled strict scrutiny applies to the 2A, and no higher court precedent holds that a state can be forced to issue a LTC to someone the state considers unsuitable (in this case a non-resident). On what basis is she going to rule any other way?

If you want lower courts to take the 2A seriously, SCOTUS is going to have to say strict scrutiny applies. So far they have not even come close, although there is some non-binding verbiage in the decisions that leans that way.

Personally, I think this is a better equal protection argument than a 2A argument, but being as CA is MI, even if he won the EP argument, he may still get no permit, and probably would not in SD county. Its one of the dryer counties, permit wise. OTOH, if he won on EP grounds, he could go to any sheriff and there are a bunch of sheriffs that issue on a SI basis, so that would effectively make CA a SI state for non-residents, although I don't know what it would mean for residents, if anything.

The 9th circuit is looked at as very liberal, but they are also somewhat of a leader and if they get the idea that the 2A really does count, you might well be very surprised at how they rule on these kind of cases.

My link

[bob]

http://www.calguns.n...ad.php?t=438041

This is a post by the NRA/plaintiff's lawyer, Here is part of it that is important.

Quote

The brief continues though, arguing even if the “substantial burden” test that was ultimately adopted by the Ninth Circuit in Nordyke is the proper test for reviewing Second Amendment infringements, San Diego County’s CCW issuance policy still fails. (See NRA's amicus brief here).

Bold and underline is me. I did not decide that strict scrutiny was not appropriate, the 9th did, and this judge is bound to that decision. She has no choice in the matter.

The Nordyke decision was very recent, just months ago. You really think a district court judge is going to tell the appeals court above them they are wrong about a decision made only a few months ago and rule against the appeals court decision? If so, you have absolutely no clue about how the courts actually work.

You cannot have judges deciding every case based on what they think the law ought to be, rather than what it really is. That would lead to a completely chaotic situation where there was no consistency in the law, and no one would trust the courts.

[Tvandermyde]

The judge did not decide nor did the 9th put down a diffinitive standard of review.

What they did say was that, was that in Nordyke did not  make a claim of self defense and therefore strict scrutiny did not apply to their challenge.

[GarandFan]

Oral argument from 6 Dec 12 here:

http://www.ca9.uscou...k_id=0000010109

It's great stuff.  Arguments, and judges responses to them, sound very reasonable and promising. San Diego's counsel really really struggled at times.

[bob]

I think the attorney for SD made a very good set of arguments. I don't necessarily agree with him, but he made a great argument claiming that the sheriff's policy is not the problem, and laying it off on the state that is not a party to the case. It gives the court an out.

Edited by bob, 10 December 2012 - 05:58 AM.

[RonOglesby]

Listening to the arguments now, and about 10:00 minutes in he starts to argue the Moore argument that you cant ban both open and concealed. Yes they may be different policies with different benefits and drawbacks, but you cant cut off all avenues for carry.

More comments to follow.

[RonOglesby]

It seems that these judges ask some of the same questions as the ones we are waiting on. They ask about not having any ability to carry yet if they state there is a right to bear arms, but they cant carry openly or carry concealed because of the Sheriff's interpretation of "good cause" then dont they have to rule for carry?

Its an interesting hearing in California because they DO have carry permits. yet they are implemented based on a state law that requires you have 'good cause'. Some sheriffs say "self defense" is good cause. Though the one being sued does not. This is really about what is 'good cause'. They have to fall back on asking about if Heller extends outside the home because good cause is interpreted differently by different sheriffs.

I would say the plaintiff had one of the better explanations of heller I have heard as a lay person. He laid out the sections of heller describing the 2A analysis and extent of the right and separated that analysis from the question of having an operable firearm in the home. TWO DIFFERENT IDEAS. They defined the scope/history of the right and applied that question to the DC law directly.
But then he pulled them back in explaining that the sensitive places argument would be a non starter and not even needed if the right did not extend outside the home.

If you have 15 minutes or so at least listen to the plantiff.