Via NRA-ILA

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

Litigation Update

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 ofPalmer 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!