CCW PERMITS, THE NINTH CIRCUIT RULING, AND CONFUSION
On February 13, 2014, a three judge panel of the Ninth Circuit U.S. Court of Appeals, in the case of Peruta, et al. v. County of San Diego and William D. Gore, Sheriff, ruled 2 -1 that “San Diego County’s ‘good cause’ permitting requirement [to issue a CCW permit] impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.”
The Court also held that “regulation of the right to bear arms is not only legitimate but quite appropriate. We repeat Heller’s [District of Columbia v. Heller, 554 U.S. 570 (2008)] admonition that ‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions’ – or carriage – ‘of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or law imposing conditions and qualifications on the commercial sale of firearms.’ Nor should anything in this opinion be taken to cast doubt on the validity of measures designed to make the carrying of firearms for self-defense as safe as possible, both to the carrier and the community.” (Emphasis in original.)
The Court acknowledged further that there is a significant split among the various U.S. Circuit Courts of Appeal on this issue. It noted that decisions in the 2nd, 3rd, and 4th Circuits have held that good cause requirements did not violate the constitutional right to keep and bear arms.
Furthermore, dissenting Justice Thomas argued that the U.S. Supreme Court, in Heller, also stated that such requirements were not unconstitutional. Justice Thomas quoted fromRobertson v. Baldwin, 165 U.S. 275 (1897), another Supreme Court decision referenced inHeller: “the right of the people to keep and bear arms . . . is not infringed by law prohibitingthe carrying of concealed weapons.” (Emphasis added.)
Peruta is Not Final
The Peruta decision rendered on 2/13/14, however, was and is not a final decision. Under the Federal Rules of Appellate Procedure (FRAP), the decision would not become final until the parties had a chance to petition for an en banc rehearing (a rehearing by 11 justices of the Court of Appeal). The FRAP provides for a 14-day period in which to file such a petition by a party to the litigation. If no petition is filed, and/or if the Court rejects a petition, the matter is then returned to the District Court (“Issuance of a Mandate”) for action in accordance with the Court of Appeal’s decision – at that time, the decision becomes final. Petitions to Intervene (and, thereby become parties) and Petitions for Rehearing En Banc had to be filed no later than February 27, 2014.
When San Diego County and the San Diego Sheriff were first sued by Edward Peruta and others who had been denied CCW permits, they asked for amicus curiae support from the California State Sheriffs’ Association (CSSA), the California Police Chiefs’ Association (CPCA), and the California Peace Officers’ Association (CPOA). All three associations joined together and the firm of JONES & MAYER, as general counsel to the associations, prepared and submitted a brief supporting the San Diego Sheriff’s decision to deny the requests for CCW permits.
The thrust of the amicus brief was that the requirement by the State of California (it is not a county requirement) that an applicant articulate “good cause” for the need to carry a concealed weapon did not infringe on the Constitutional right to bear arms. The brief argued that what constitutes “good cause” in one part of the state, for example a rural community with limited law enforcement support available, is different from what constitutes “good cause” in a densely populated urban community. Furthermore, it is the responsibility of the county sheriff or the municipal police chief to makes those decisions in order to provide for the public’s safety.
Following the decision in Peruta, Sheriff Gore and San Diego County announced that they would not file a petition for an en banc rehearing despite the fact that the ruling was contrary to the position they took in the underlying case. As such, each of the three associations which had filed the amicus brief considered whether to move for intervention and petition for an en banc rehearing. The boards of directors of CPCA and CPOA voted to proceed, while CSSA chose to not participate any further.
As such, a Petition for Rehearing along with a motion to intervene was filed on behalf of CPCA and CPOA in a timely fashion. In addition, the State of California, and the Brady Campaign to Prevent Gun Violence did so, as well. On March 1, 2014, Ninth Circuit U.S. Court of Appeals granted a stay on the decision in Peruta.
The Court has not yet agreed to rehear the case, en banc, but as a result of the issuance of a stay, the decision of the three judge panel is still not final at this time. As such, the law of California regarding the need to articulate “good cause” for a concealed weapon permit is still in effect.
On March 5, 2014, the Court of Appeal issued the following order: “Each party is each directed to file a response of no more than 6,000 words addressing the pending motions to intervene filed with this Court on February 27, 2014. Each response shall address: 1) Motion to Intervene by the State of California, 2) Motion for Leave to Intervene by the Brady Campaign to Prevent Gun Violence, and 3) Petition for Rehearing En Banc by Amici Curiae California Police Chiefs’ Association and California Peace Officers’ Association insofar as the Petition is a motion to intervene. . . . The responses shall be filed within 21 days of this order.”
As a result of this latest action by the Court of Appeals, the mandate is stayed for at least 21 days for the briefing, plus enough time for the Court to reach a decision regarding the “pending motions to intervene” by the entities identified in the Court’s Order.
HOW THIS AFFECTS YOUR AGENCY
The confusion continues unabated. While the Peruta matter is still unsettled, and the question of whether there will be an en banc rehearing is unanswered. Of some interest, the same three judge panel ruled, on March 5, 2014, that the “good cause” requirement of Yolo County Sheriff Ed Prieto, also violated the right to bear arms pursuant to the Second Amendment.
In an unpublished two page memorandum in Adams, et al. v. Ed Prieto and Yolo County, the Court of Appeals overruled a District Court decision upholding the “good cause” requirement. The Court of Appeal followed its decision in Peruta and held that “the district court in this case erred in denying Richard’s motion for summary judgment because the Yolo County policy impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.”
Because the decision is unpublished it only affects the parties in the Adams case and has no precedential value. Nonetheless, it adds to the confusion of what is the current law in California.
As noted above, since the Peruta decision is not yet final, and the Adams decision affects only those in that case, the law in California remains unchanged and still requires the showing of “good cause” for the issuance of a permit to carry a concealed weapon.
This is a very confusing area of law and it is imperative that you receive advice and guidance from your agency’s legal advisor on this issue.
As always, should you wish to discuss this matter in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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