742 F.3d 1144 (9th Cir. 2014), 10-56971, Peruta v. County of San Diego

Docket Nº:10-56971
Citation:742 F.3d 1144
Opinion Judge:O'SCANNLAIN, Circuit Judge.
Party Name:EDWARD PERUTA; MICHELLE LAXSON; JAMES DODD; LESLIE BUNCHER, Dr.; MARK CLEARY; CALIFORNIA RIFLE AND PISTOL ASSOCIATION FOUNDATION, Plaintiffs - Appellants, v. COUNTY OF SAN DIEGO; WILLIAM D. GORE, individually and in his capacity as Sheriff, Defendants - Appellees
Attorney:Paul D. Clement, Bancroft PLLC; Washington; D.C. argued the cause for the plaintiffs-appellants. Carl D. Michel, Michel & Associates, P.C., Long Beach, California, filed the briefs for the plaintiffs-appellants. With him on the briefs were Glenn S. McRoberts, Sean A. Brady, Anna M. Barvir, Clinto...
Judge Panel:Before: O'SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges. THOMAS, Circuit Judge, dissenting. THOMAS, Circuit Judge, dissenting:
Case Date:February 13, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1144

742 F.3d 1144 (9th Cir. 2014)

EDWARD PERUTA; MICHELLE LAXSON; JAMES DODD; LESLIE BUNCHER, Dr.; MARK CLEARY; CALIFORNIA RIFLE AND PISTOL ASSOCIATION FOUNDATION, Plaintiffs - Appellants,

v.

COUNTY OF SAN DIEGO; WILLIAM D. GORE, individually and in his capacity as Sheriff, Defendants - Appellees

No. 10-56971

United States Court of Appeals, Ninth Circuit

February 13, 2014

Argued and Submitted December 6, 2012 San Francisco, California

As Corrected March 24, 2014.

Counsel Amended March 4, 2014.

Page 1145

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of California. D.C. No. 3:09-cv-02371-IEG-BGS. Irma E. Gonzalez, Chief District Judge, Presiding.

Paul D. Clement, Bancroft PLLC; Washington; D.C. argued the cause for the plaintiffs-appellants. Carl D. Michel, Michel & Associates, P.C., Long Beach, California, filed the briefs for the plaintiffs-appellants. With him on the briefs were Glenn S. McRoberts, Sean A. Brady, Anna M. Barvir, Clinton B. Monfort, and Bobbie K. Ross, Michel & Associates, P.C., Long Beach, California, and Paul Neuharth, Jr., Paul Neuharth, Jr. APC., San Diego, California.

James M. Chapin, Senior Deputy Attorney for County of San, San Diego, California, argued the cause and filed the brief for defendant-appellee William D. Gore. With him on the brief was Thomas E. Montgomery, County Counsel for County of San Diego, San Diego, California.

Stephen P. Halbrook, Fairfax, Virginia, filed the brief on behalf of amicus curiae Congress of Racial Equality, Inc. in support of the plaintiffs-appellants.

Paul D. Clement, Bancroft PLLC, Washington, D.C., filed the brief on behalf of amicus curiae National Rifle Association of America, Inc. in support of plaintiffs-appellants.

David B. Kopel, Independence Institute, Golden, Colorado, filed the brief on behalf of amici curiae International Law Enforcement Educators and Trainers Association and the Independence Institute.

Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia, filed the brief on behalf of amici curiae Second Amendment Foundation, Inc., Calguns Foundation, Inc., Adam Richards, and Brett Stewart in support of plaintiffs-appellants.

John C. Eastman, Chapman University School of Law, Orange, California, filed the brief on behalf of amici curiae Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, and Law Enforcement Alliance of America. With him on the brief were Anthony T. Caso and Karen J. Lugo.

Don B. Kates, Battle Ground, Washington, filed the brief on behalf of amici curiae Gun Owners of California and Senator H.L. Richardson (Ret.) in support of plaintiffs-appellants.

Neil R. O'Hanlon, Hogan Lovells U.S. LLP, Los Angeles, California, filed the brief on behalf of amici curiae Brady Center to Prevent Gun Violence, the International Brotherhood of Police Officers, and the Police Foundation. With him on the brief were Adam K. Levin, S. Chartey Quarcoo, and Samson O. Asiyanbi, Hogan Lovells U.S. LLP, Washington, D.C., and Jonathan E. Lowy and Daniel R. Vice, Brady Center to Prevent Gun Violence, Washington, D.C.

Paul R. Coble, Law Offices of Jones & Mayer, Fullerton, California, filed the brief on behalf of amici curiae California State Sheriffs Association, California Police Chiefs Association, and California Peace Officers Association in support of defendants-appellees. With him on the brief was Martin J. Mayer, Law Offices of Jones & Mayer, Fullerton, California.

Simon J. Frankel, Covington & Burling LLP, San Francisco, California, filed the brief on behalf of amici curiae Legal Community against Violence, Major Cities Chiefs Association, Association of Prosecuting Attorneys, and San Francisco District Attorney George Gascón in support of defendants-appellees. With him on the brief were Samantha J. Choe, Steven D. Sassaman, and Ryan M. Buschell, Covington & Burling LLP, San Francisco, California.

Before: O'SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges. THOMAS, Circuit Judge, dissenting.

OPINION

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O'SCANNLAIN, Circuit Judge.

We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.

I

A

California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations.1 See Cal. Penal Code § 25400 (prohibiting concealed carry of a firearm); id. § 25850 (prohibiting carry of a loaded firearm); id. § 26350 (prohibiting open carry of an unloaded firearm); see also id. § 25605 (exempting the gun owner's residence, other private property, and place of business from section 25400 and section 26350).

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Nonetheless, one may apply for a license in California to carry a concealed weapon in the city or county in which he or she works or resides. Id. § § 26150, 26155. To obtain such a license, the applicant must meet several requirements. For example, one must demonstrate " good moral character," complete a specified training course, and establish " good cause." Id. § § 26150, 26155.

California law delegates to each city and county the power to issue a written policy setting forth the procedures for obtaining a concealed-carry license. Id. § 26160. San Diego County has issued such a policy. At issue in this appeal is that policy's interpretation of the " good cause" requirement found in sections 26150 and 26155: " [A] set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way." Good cause is " evaluated on an individual basis" and may arise in " situations related to personal protection as well as those related to individual businesses or occupations." But--important here--concern for " one's personal safety alone is not considered good cause."

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.

B

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, confident 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.

C

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 policy'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 his right to bear arms under the Second Amendment.

About a year later, the applicants and the County filed dueling motions for summary judgment. The district court denied the applicants' motion and granted the County's. Assuming without deciding that the Second Amendment " encompasses Plaintiffs' asserted right to carry a loaded handgun in public," the district court upheld the County policy under intermediate scrutiny. As the court reasoned, California's " important and substantial interest in

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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. The district court rejected all of the other claims, and the applicants timely appealed.

II

As in the district court, on appeal the applicants place one argument at center stage: they assert that by defining " good cause" in San Diego County's permitting scheme to exclude a general desire to carry for self-defense, the County impermissibly burdens their Second Amendment right to bear arms.

The Supreme Court's opinions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), direct our analysis of this claim. In Heller, the Court confronted a Second Amendment challenge to a District of Columbia law that " totally ban[ned] handgun possession in the home" and " require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock." 554 U.S. at 603, 628-29. The validity of the measures depended, in the first place, on whether the Second Amendment codified an individual right, as plaintiff Dick Heller maintained, or a collective right, as the government insisted. Id. at 577.

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