Federal Appeals Court will Re-Consider NRA Victory in California Right to Carry Case, Peruta v. San Diego

Federal Appeals Court will Re-Consider NRA Victory in California Right to Carry Case, Peruta v. San Diego

Litigation Update

https://www.nraila.org/articles/20150326/california-the-battle-for-shall-issue-is-on

On March 26, 2015, the Ninth Circuit Court of Appeals ordered that Peruta v. San Diego will be re-heard by an eleven-judge “en banc” panel.  In February 2014, the NRA and CRPA sponsored Peruta case resulted in a monumental ruling by a three-judge panel of the Ninth Circuit. That decision held that the San Diego County Sheriff’s policy of refusing to issue licenses to carry firearms in public unless an applicant could demonstrate a special need was an unconstitutional violation of the Second Amendment.

After Attorney General Kamala Harris and the gun ban lobby learned that Sheriff Gore had decided not to appeal the case further (even though he refused to change his policy), the Attorney General and several anti-gun groups filed requests to join the litigation and continue litigating the appeal as parties to the case. The three-judge panel denied each of the intervention requests. In December 2014, the Attorney General and the anti-gun-rights groups filed requests for en banc review of the decision to deny them entry into the case.

Also in December 2014, at least one Ninth Circuit judge made a “sua sponte” (or on the Court's own accord) request for all Ninth Circuit judges to vote on whether the Peruta case itself should be reheard en banc, regardless of whether the Attorney General would be allowed to join the case.

Today, the Court issued an order confirming that a majority of Ninth Circuit judges voted to rehear Peruta en banc.  The Court has set oral arguments for June 15, 2015. The Court also ordered that the related case of Richards v. Prieto, which was decided under the reasoning outlined in Peruta, will be heard along with the Peruta case on June 15.

No matter what happens as a result of the rehearing en banc, either side will almost certainly petition a loss to the U.S. Supreme Court.

For those who are interested in learning more about this critical Second Amendment case, NRA News has produced an outstanding video and the America’s First Freedom magazine published an enlightening article about the case. 

A Court Battle Already Paying Dividends

The most common method used nationally by states and localities to selectively deny a person their Second Amendment right to carry a firearm for self-defense is to create a subjective licensing prerequisite. Requiring a demonstration of “good cause” or its equivalent before a license will be issued is such a method, because if you have to show “good cause,” then you must prove a special “need” to carry a firearm. This creates a subjective system prone to political cronyism and corruption, which is the way California’s “good cause” system has been working for years. Reform is long overdue.

As a result of the 3-judge panel’s decision in Peruta, several California counties that had policies similar to San Diego’s have changed those policies from a restrictive “good cause” standard that few could meet, to one that accepts general self-defense as “good cause,” which most anyone can meet. Orange and Ventura counties are among the California jurisdictions that have changed their ways since the Peruta decision was issued. Previously, applicants had to show proof of specific threats, such as a police report or a protective order, to prove they were in immediate danger before they could get a license. Since the Peruta decision, these counties have generally been accepting self-defense as “good-cause” for obtaining a license.

If the Peruta decision is upheld by the en banc panel, all of the states and territories in the Ninth Circuit would also have to review their license issuance policies, and revise them to conform to the Peruta decision. The Ninth Circuit includes Alaska and Arizona (“constitutional carry” states), Idaho, Montana, Nevada, Oregon and Washington (“shall issue” states).  It also includes Guam, which has already changed its policy in light of Peruta. And it includes California and Hawaii, the outliers.

We need to hold onto the victory in Peruta so that these policies go into effect throughout California and the entire Ninth Circuit! But the Peruta decision’s persuasive influence is not limited to the Ninth Circuit territories and states. Recently, in the case of Palmer v. District of Columbia, a federal court relied heavily on the Peruta decision as precedent for its opinion striking down D.C.’s total ban on the public carrying of firearms. Significantly, the ban at issue in Palmer was more extreme than the California policy challenged in the Peruta case.

Nevertheless, the Palmer court cited to Peruta extensively, suggesting that the D.C. court is warning D.C. lawmakers that they should not adopt a California style “good cause” licensing scheme, because it will face the same fate as the one struck down in Peruta. Without the Peruta opinion as precedent, it is doubtful that the D.C. court would have gone so far.

The Next Fight Looms

If the eleven-judge en banc panel of the Ninth Circuit reverses the three-judge panel’s decision, Mr. Peruta and the other plaintiffs will appeal to the Supreme Court, with continued support from the NRA, CRPA, and their legal teams. And, although the Supreme Court’s ruling in Heller ruling didn’t need to address the specific issues of carrying outside the home, much less “good cause” for a license to do so, victory at the Supreme Court is possible given observations about bearing arms in the Court’s Heller decision, and the difficulty the Court would have in affirming the existence of one half of a fundamental right (to keep arms) but not the other (to bear arms).

If the en banc court affirms the decision that requiring a special need to carry a firearm is an unconstitutional restriction, the anti-gun forces have the option of appealing to the Supreme Court, which is likely.

Supreme Court Bound?

The Peruta case presents an opportunity for the Supreme Court to settle some Second Amendment issues that desperately need resolving. The Seventh Circuit Court of Appeals has agreed with the principles, though not the specific details, of the Peruta ruling in another NRA-supported case of Shepard v. Madigan and the related case of Moore v. Madigan. In these cases challenging Illinois’ ban on bearing arms in public, the Seventh Circuit Court held that prohibiting any form of carrying arms in public was unconstitutional. Rather than risk having the ruling confirmed by the Supreme Court, Illinois did not seek Supreme Court review. Meanwhile, three other circuit courts have gone the opposite direction and held that there is effectively no right to bear arms outside the home: Kachalsky v. Cacace in the Second Circuit (New York), Drake v. Filko in the Third Circuit (New Jersey) and Woollard v. Gallagher in the Fourth Circuit (Maryland). The Supreme Court was asked to review each of those cases, but declined to do so. With this split of opinions among the federal Circuit Courts, the U.S. Supreme Court could take the Peruta case to resolve these critical Second Amendment issues.

Gun Banners Seek Poster Child

Gun owners and carry license holders should be acutely aware that their conduct could be mischaracterized and used to influence the licensing process in California for years to come. The gun ban lobby is waiting and hoping for a license holder to do something that they can spin, politicize, and use to fight against a constitutional shall-issue regime in California. Several years ago in Los Angeles County, an unfortunate incident involving a license holder caused Los Angeles County Sheriff Baca to stop issuing the few licenses that he was issuing at the time. Be careful not to take any action that could be used for the gun ban lobby’s anti-gun-owner PR efforts!                

Help Us Help You

Please help us fight for your right to choose to own a gun for sport, or to defend yourself and your family. CRPA and the NRA work together in California to fight for you in Sacramento, in cities and counties across the state, in regulatory agencies, and in the courts. Even with the generous rates that our team of civil rights attorneys, legislative advocates, experts and consultants grant us, these ongoing efforts are still expensive. You can support our pro-Second Amendment efforts in California by donating to the California Rifle & Pistol Association Foundation (CRPAF). CRPAF is a 501(c)(3), so contributions to CRPAF are tax-deductible. Or donate to theNRA Legal Action Project. All donations will be spent to specifically benefit California gun owners.

Please help us fight for your right to choose to own a gun for sport, or to defend yourself and your family. CRPA and the NRA work together in California to fight for you in Sacramento, in cities and counties across the state, in regulatory agencies, and in the courts. Even with the generous rates that our team of civil rights attorneys, legislative advocates, experts and consultants grant us, these ongoing efforts are still expensive. You can support our pro-Second Amendment efforts in California by donating to the California Rifle & Pistol Association Foundation (CRPAF). CRPAF is a 501(c)(3), so contributions to CRPAF are tax-deductible. Or donate to theNRA Legal Action Project. All donations will be spent to specifically benefit California gun owners.

Second Amendment supporters should be careful about supporting litigation or other efforts promised by other individuals and groups that lack the experience, resources, skill, or legal talent to be successful. The NRA and CRPA national team of highly regarded civil rights attorneys, legislative advocates, and scholars has the experience, resources, skill and expertise needed to maximize the potential for victory in California’s often hostile political environments.

For a summary of some of the many actions the NRA and CRPA has taken on behalf of California gun owners, including the Peruta case, click here.

Sheriff Gore

Bill Gore Is Poor Choice For San Diego Sheriff

http://angiemedia.com/2010/04/20/bill-gore-is-poor-choice-for-san-diego-sheriff/#.VqpiaubWpf1

Bill Gore And Ruby Ridge Government Murders

More concerning, Gore’s record as an FBI employee is fraught with problems. He was the agent in charge for the Ruby Ridge FBI assault on Randy Weaver’s family that resulted in multiple fatalities, including the death by shooting of a mother holding a baby and a child shot in the back as he fled law enforcement gunfire. The government settled out of court with a $3.1 million award to Randy Weaver for the wrongful deaths of his wife and son.

Note: William H. Webster was a director for the Federal Bureau of Investigation (FBI), and the chair for the Homeland Security Advisory Council.

William J. Bratton is a director at the Homeland Security Advisory Council, a commissioner for the New York City Police Department, and was the chief for the Los Angeles (CA) Police Department.

Lee H. Hamilton is a director at the Homeland Security Advisory Council, and a director at BAE Systems Inc.

Michael Chertoff is the chairman for BAE Systems Inc., a senior of counsel at Covington & Burling LLP, a national partner with America Votes, and was an assistant attorney general for the U.S. Department of Justice.

Alex Kozinski was an attorney at Covington & Burling LLP, and is the chief judge for the U.S. Court of Appeals for the 9th Circuit.

America Votes is a national partner with the Brady Campaign to Prevent Gun Violence.

Brady Campaign to Prevent Gun Violence is a “Gun Safety, Gun Control” group for guns.

Michael D. Barnes was the president of the Brady Campaign to Prevent Gun Violence, and is a director at the Center for National Policy.

Kamala D. Harris is an advisory board member for the Center for National Policy, an advisory board member for the Truman National Security Project, and the attorney general for the California state government.

Gabrielle Giffords is an advisory board member for the Center for National Policy, an advisory board member for the Truman National Security Project, and a co-founder for the Americans for Responsible Solutions.

Americans for Responsible Solutions is a “Gun Safety, Gun Control” PAC for guns.

Covington & Burling LLP is the lobby firm for the Americans for Responsible Solutions, and BAE Systems Inc.

Michael R. Bloomberg was a contributor for the Americans for Responsible Solutions, a benefactor for the Harlem Children's Zone, is a co-chair for the Mayors Against Illegal Guns, and the founder of Everytown for Gun Safety.

Foundation to Promote Open Society was a funder for the Harlem Children's Zone.

George Soros was the chairman for the Foundation to Promote Open Society, a benefactor for the Harlem Children's Zone, and is the founder & chairman for the Open Society Foundations. 

Open Society Foundations was a funder for the American Constitution Society.

Mayors Against Illegal Guns is a “Gun Safety, Gun Control” group for guns.

Everytown for Gun Safety is a “Gun Safety, Gun Control” group for guns.

Annise Parker is an advisory board member for Everytown for Gun Safety, and a member of the Homeland Security Advisory Council.

William H. Webster was the chair for the Homeland Security Advisory Council, and a director for the Federal Bureau of Investigation (FBI).

Lee H. Hamilton is a director at the Homeland Security Advisory Council, and a director at BAE Systems Inc.

Michael Chertoff is the chairman for BAE Systems Inc., a national partner with America Votes, a senior of counsel at Covington & Burling LLP, and was an assistant attorney general for the U.S. Department of Justice.

Alex Kozinski was an attorney at Covington & Burling LLP, and is the chief judge for the U.S. Court of Appeals for the 9th Circuit.

Covington & Burling LLP is the lobby firm for BAE Systems Inc., and the Americans for Responsible Solutions.

Eric H. Holder Jr. is a partner at Covington & Burling LLP, married to Sharon Malone, was the attorney general at the U.S. Department of Justice, for the Barack Obama administration, and a board member for the American Constitution Society.

Sharon Malone is married to Eric H. Holder Jr., and was Loretta Lynch’s Harvard classmate.

Loretta Lynch was Sharon Malone’s Harvard classmate, and is attorney general for the U.S. Department of Justice.

Bureau of Alcohol, Tobacco, Firearms and Explosives is a division of the U.S. Department of Justice.

Robert Raben was an assistant attorney general for the U.S. Department of Justice, a director at the American Constitution Society, and is the president of the Raben Group.

Mario M. Cuomo was a board of adviser’s member for the American Constitution Society, and Maria Cuomo Cole’s father.

Maria Cuomo Cole is Mario M. Cuomo’s daughter, and a trustee at the Brady Center to Prevent Gun Violence.

Brady Center to Prevent Gun Violence is a “Gun Safety, Gun Control” group for guns.

Mayors Against Illegal Guns is a “Gun Safety, Gun Control” group for guns.

Raben Group is the lobby firm for the Mayors Against Illegal Guns.

Melody C. Barnes was a principal for the Raben Group, the domestic policy council, director for the Barack Obama administration, is Barack Obama’s golf partner, and a senior adviser for the Albright Stonebridge Group.

Madeleine K. Albright is a co-chairman for the Albright Stonebridge Group, an advisory board member for the Truman National Security Project, and was the president of the Center for National Policy.

Kamala D. Harris is an advisory board member for the Truman National Security Project, and an advisory board member for the Center for National Policy, and the attorney general for the California state government.

Gabrielle Giffords is an advisory board member for the Truman National Security Project, an advisory board member for the Center for National Policy, and a co-founder for the Americans for Responsible Solutions.

Americans for Responsible Solutions is a “Gun Safety, Gun Control” PAC for guns.

Patton Boggs LLP was the lobby firm for San Diego (CA), and the counsel for the 2012 Mitt Romney presidential campaign.

Mitt Romney was the candidate for the 2012 Mitt Romney presidential campaign, and a member of the Homeland Security Advisory Council.

William H. Webster was the chair for the Homeland Security Advisory Council, and a director for the Federal Bureau of Investigation (FBI).

William J. Bratton is a director at the Homeland Security Advisory Council, a commissioner for the New York City Police Department, and was the chief for the Los Angeles (CA) Police Department.

Lee H. Hamilton is a director at the Homeland Security Advisory Council, and a director at BAE Systems Inc.

Michael Chertoff is the chairman for BAE Systems Inc., a senior of counsel at Covington & Burling LLP, a national partner with America Votes, and was an assistant attorney general for the U.S. Department of Justice.

Alex Kozinski was an attorney at Covington & Burling LLP, and is the chief judge for the U.S. Court of Appeals for the 9th Circuit.

Covington & Burling LLP is the lobby firm for BAE Systems Inc, and the Americans for Responsible Solutions.

Americans for Responsible Solutions is a “Gun Safety, Gun Control” PAC for guns.