Vol. 26 No. 11 – Another Challenge To California’s Law On Concealed Weapon Permits

                                                  CLIENT ALERT MEMORANDUM

To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.


May 31, 2011

On May 13, 2011, in the case of Adam Richards et al. v. County Of Yolo and Yolo County Sheriff Ed Prieto, U. S. District Court Judge Morrison England, Jr. of the Eastern District ruled that Sheriff Prieto retains “discretion to issue a license to carry a concealed firearm to residents within Yolo County.”

Adam Richards, Brett Stewart, the Second Amendment Foundation, Inc. and the Calguns Foundation, Inc. joined together to challenge Sheriff Prieto after Richards and Stewart were denied permits to carry concealed weapons (CCW) by the Sheriff.   In addition, they challenged the policy the Sheriff has in place to decide on who receives such permits.

Plaintiffs contend that, “by maintaining a policy that deprives Plaintiffs Richards and Stewart of a concealed weapon license, Defendants are infringing on their Second Amendment right to bear arms, as the Yolo County license policy effectively acts as a complete ban on an individual’s right to carry.”  Defendants argue, among other things that the policy “is not a total ban on the possession of handguns.”

A Challenge to California’s Laws Regarding CCW’s

The court noted that “California law generally prohibits individuals from carrying a concealed firearm in public,” although there are several exceptions to that prohibition.  Obviously, law enforcement officers are exempt from the prohibition, as are those who are issued a CCW pursuant to Penal Code 12050.

In order to secure a CCW, applicants “must provide good cause . . . and demonstrate they are of good moral character.”  They are also required to undergo a background check and complete a training course.  In addition, the court noted, “the state grants each municipal or county authority [police chiefs or sheriffs] wide latitude to determine both the appropriate criteria for issuing a license and the need to impose any reasonable restrictions on the licensee.”

Sheriff Prieto had developed a policy in accordance with state law and it “clearly enumerates the criteria for obtaining the license, and an applicant must, among other things, demonstrate that they have a valid reason to request the permit in the first place.  Examples of valid reasons listed in the policy include, but are not limited to:  credible threats of violence against the applicant . . . . ”Ultimately, said the court, “the issuance of a license . . . bears on whether the Sheriff or his designee feels there is sufficient reason to grant the license.”

This decision is at the district court level and, therefore, has no impact on others who may also bring a challenge.  However, counsel for the plaintiffs indicate that he plans on filing an appeal with the Ninth Circuit U.S. Court of Appeals.  It is likely that this case, along with others which are pending, such as Peruta v. County of San Diego, will ultimately wind up before the U.S. Supreme Court.

Jones & Mayer will be filing an amicus curiae brief from the California State Sheriffs’ Association, the California Police Chiefs’ Association, and the California Peace Officers’ Association, in thePeruta case, supporting San Diego County Sheriff Bill Gore’s authority to determine what constitutes “good cause” for the issuance of a CCW.

U.S. Supreme Court Decisions

“Plaintiffs argue that, by maintaining a policy that deprives Plaintiffs Richards and Stewart of a concealed weapon license, Defendants are infringing on their Second Amendment right to bear arms, as the Yolo County license policy effectively acts as a complete ban on an individual’s right to carry. They challenge the policy both on its face, and as applied.”

In support of their position, Plaintiffs rely on two recent decisions from the U.S. Supreme Court which dealt with rights and obligations under the Second Amendment to the U.S. Constitution.

In United States v. Heller, 554 U.S. 570 (2008), the Court held that a Washington, D.C. “ban on handgun possession in the home [for self defense purposes] violates the Second Amendment.” However, the Supreme Court also stated that, “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

In the case of McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), the Court held that the Second Amendment applied to the states and the Amendment “protects a personal right to keep and bear arms for lawful purposes, most notably for self defense in the home.”  However, the Court also stated that “the right secured by the Second Amendment was not unlimited.”

The Supreme Court emphasized, in both cases, that the decisions “did not, in any way, invalidate many of the longstanding state and federal prohibitions on firearm possession.”  As such, the District Court, in the Yolo County case, said that “Heller cannot be read to invalidate Yolo County’s concealed weapon policy, as the Second Amendment does not create a fundamental right to carry a concealed weapon in public.”  (Emphasis added.)


Since, as noted above, this is a district court decision, there will be no direct impact on anyone other than the parties to this lawsuit.  It will not have a direct effect on other law enforcement agencies, nor will it create binding legal precedent.

What this case has done, along with the Peruta case, is to create a basis for a decision to be ultimately reached on whether California’s laws, regarding the issuance of CCWs, will be upheld as constitutional.  It appears likely that this question may reach the United States Supreme Court as a reasonable follow up to the Heller and McDonald decisions.  Only time will tell.

As of now, however, based on Peruta, and this decision, sheriffs and police chiefs still have the authority to decide on who receives a permit to carry a concealed weapon in California.  It is, obviously, important that the policies, and decisions regarding issuance, be fair and impartial in order to withstand challenge.  In developing and/or reviewing the policies in each jurisdiction, it is important to receive the advice and guidance of your respective legal advisors.

As always, if you have any questions regarding his matter, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.