Vol. 29 No. 5 – Ninth Circuit Invalidates California’s “Good Cause” Requirement for Issuance of CCW


On February 13, 2014, in the case of Peruta, et al v. County of San Diego, et al., the Ninth Circuit U. S. Court of Appeals, in a 2-1 decision, invalidated California’s requirement that CCW applicants show “good cause” to be granted a concealed weapon permit[1].

The panel overturned the district court’s grant of summary judgment in favor of the County and the Sheriff, and held that the need to show “good cause,” beyond “concern for one’s personal safety alone,” was an infringement on the Constitutional protections of the Second Amendment.

The Court does state, in a footnote, that “(i)n this case, as in Heller, we consider the scope of the right only with respect to responsible, law-abiding citizens . . . .” As such, the Court implies that it is necessary and appropriate to conduct an investigation to determine if one is a “responsible, law-abiding” citizen.


As stated in the Court’s introduction, the power to grant concealed – carry licenses in San Diego County is vested in the county sheriff’s department. Since 1999, the sheriff’s department has required all applicants to “provide supporting documentation” in order “to demonstrate and elaborate good cause.”

This “required documentation, such as restraining orders, letters from law enforcement agencies or the [district attorney] familiar with the case, is discussed with each applicant” to determine whether he or she can show a sufficiently pressing need for self-protection. If the applicant cannot demonstrate “circumstances that distinguish [him] from the mainstream,” then he will not qualify for a concealed-carry permit.

“Wishing to carry handguns for self-defense, but unable to document specific threats against them, plaintiffs Edward Peruta, Michelle Laxson, James Dodd, Leslie Buncher, and Mark Cleary (collectively “the applicants”), all residents of San Diego County, were either denied concealed – carry licenses because they could not establish “good cause” or decided not to apply, claiming that their mere desire to carry for self-defense would fall short of establishing “good cause” as the County defines it.”

“An additional plaintiff, the California Rifle and Pistol Association Foundation, comprises many San Diego Country residents ‘in the same predicament as the individual Plaintiffs.’ No plaintiff is otherwise barred under federal or state law from possessing firearms.”

On October 23, 2009, after the County denied his application for a concealed – carry license, Peruta sued the County of San Diego and its sheriff, William Gore (collectively “the County”), under 42 U.S.C. §1983, requesting injunctive and declaratory relief from the enforcement of the County’s interpretation of “good cause.”

Peruta’s lead argument was that, by denying him the ability to carry a loaded handgun for self – defense, the County infringed upon his right to bear arms under the Second Amendment.

Peruta and the other Plaintiffs, as well as the County, filed motions for summary judgment. The district court denied the applicants’ motion and granted the County’s.

According to the Ninth Circuit, the district court denied plaintiffs’ motion without deciding that the Second Amendment “encompasses Plaintiffs’ asserted right to carry a loaded handgun in public,” and the district court upheld the County policy under intermediate scrutiny.

The trial court had reasoned that California’s “important and substantial interest in public safety,” particularly in “reduc[ing] the risks to other members of the public” posed by concealed handguns’ “disproportionate involvement in life-threatening crimes of violence,” trumped the applicants’ allegedly burdened Second Amendment interest.

Ninth Circuit Reasoning

In sometimes extensive detail, throughout a seventy – nine (79) page opinion by the two judge majority, citing repeatedly to the U.S. Supreme Court holdings in District of Columbia v. Heller, (2008) 554 U.S. 570 and McDonald v. City of Chicago, (2010) 130 S.Ct. 3020, the Court examined the historical and cultural meaning of the Second Amendment right to keep and bear arms at the time of the founding of our nation.

In doing so, the Court concluded that, historically, it was apparent that the Founders intent was to preserve the right of armed self defense of all persons, both within and outside of the home. The Court next turned to the period after the founding of the country, through the pre-Civil War period, to examine how various state and federal courts had also interpreted the Second Amendment.

Through this analysis, the Court concluded that, except for instances of barring certain means of bearing arms as inherently evil and socially disruptive, the overriding conclusion throughout that era had been to uphold the right of armed self defense within and outside of the home.

Then the Court examined Second Amendment issues in the post – Civil War period up to current time, again purporting to find wide support for the individual right of armed self defense against both public and private violence.

Finally, turning to the question of whether the “good cause” requirement applied by San Diego County is an impermissible Second Amendment infringement, the Ninth Circuit notes that California’s firearms regulatory scheme already prohibits open carry of a loaded firearm. Thus, held the Court, the only way in which a person can secure permission to carry a firearm in public is by seeking a concealed weapon permit.

However, the Court concludes that by requiring a showing of good cause, sufficient to separate the CCW applicant from the mainstream population, the “good cause” requirement effectively takes off the table the Second Amendment right of an individual to self defense outside of the home.

This, said the Ninth Circuit, is “an infringement under any light,” as it constitutes not simply a burdening of the right to bear arms, but it is a “destruction of that right.”

In reaching its decision, the majority notes that it is the fifth U.S. Circuit Court of Appeal to opine on this issue, and that in doing so it joins an existing split among the circuits.

The Dissent

In his dissent, Circuit Judge Thomas relies, as well, on the Supreme Court’s guidance inHeller and McDonald, but arrives at the conclusion that the San Diego regulation is permissible under a Second Amendment analysis.

Judge Thomas begins by noting that in Heller the Supreme Court held that, “the right secured by the Second Amendment is not unlimited” and that it “was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

He further notes that Heller observed that “the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

The Heller Court then emphasized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions [against concealed carry],” which it labeled as “presumptively lawful.”

The majority, states Judge Thomas, “not only strikes down San Diego County’s concealed carry policy, but upends the entire California firearm regulatory scheme.” (Emphasis added.)

Furthermore, Judge Thomas states, “[t]he majority opinion conflicts with Heller, the reasoned decisions of other Circuits, and our own case law.”

As seen by the dissent, carrying a concealed weapon in public presents an entirely different Second Amendment issue from possessing handguns in the home for self-defense.

The dissent notes that the Supreme Court pointed out, in Heller, thatcourts and state legislatures have long recognized the danger to public safety of allowing unregulated, concealed weapons to be carried in public.

Indeed that danger formed part of the rationale for allowing police “stop and frisks” in Terry v. Ohio, 392 U.S. 1 (1968). Justice Thomas notes that in the Terry case, Justice Harlan observed that “[c]oncealed weapons create an immediate and severe danger to the public.”

On this point, Judge Thomas points to the amicus curiae brief of CSSA, CPCA and CPOA, noting that ‘Indeed, the California State Sheriffs’ Association, the California Police Chiefs’ Association, and the California Peace Officers’ Association note in their amicus brief that the diversity of communities and regions in California warrants the exercise of discretion by chief law enforcement executives to determine, in the context of the issues presented in their jurisdiction, the circumstances under which a concealed gun permit should issue.”

How This Affects Your Agency

At this point, although the Ninth Circuit reversed the district court’s granting of the County’s motion for summary judgment, it remanded the matter back to the lower court for further action consistent with this decision. As a result, there is more to come.

It is also likely that the County of San Diego will petition for an en banc review (consisting of a panel of 11 members of the Court) and/or appeal to the U.S. Supreme Court.

Both the majority and the dissent note the split of opinions among the federal Circuits on the CCW issue. There is, furthermore, a clear divide in the reading and application of the Supreme Court’s holdings, particularly in Heller, with the Ninth Circuit majority going far beyond, and even in direct contravention of, the language of that decision.

As such, the Ninth Circuit holding in Peruta fairly cries out for review by an en banc panel and/or by the Supreme Court, both to settle the split among the Circuit Courts of Appeal and to bring the Ninth Circuit back into line with the holdings of the U.S. Supreme Court.

Otherwise, with Peruta left in place the impact would be, as described by Judge Thomas in his dissent, to upend the entire California firearm regulatory scheme by making it the default setting that one gets to carry a concealed firearm unless there is express good cause not to do so, such as those articulated in the decision.

Additionally, under such a scheme, it is readily foreseeable that every denial of a CCW permit would be met with litigation. Based on this opinion, virtually everyone would be entitled to carry a loaded and concealed firearm without having to show good cause, other than the fear of harm.

In a matter such as this, it is imperative that agencies secure advice and guidance from their designated legal counsel.

As always, should you wish to discuss this matter in greater detail, please feel free to contact either Martin Mayer or Paul Coble at (714) 446 — 1400 or via email at mjm@jones-mayer.com or prc@jones-mayer.com, respectively.

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.

[1]Jones & Mayer appeared as amicus curiae for CSSA, CPCA and CPOA on behalf of San Diego County and the San Diego County Sheriff. The dissent specifically referenced the amicus brief in justifying the need for good cause to be shown.