Peruta v. San Diego

[Al Norris]

The last we heard, on 10-04-2010, Defendant Sheriff Gore filed a cross MSJ; an amicus brief was filed by the Brady Center; a declaration was filed by anti-gun Prof. Zimring; a declaration was filed by the manager of CCW, Pelowitz.

There it pretty much stood until the 18th of October.

Last week, a joint amicus brief by the Independence Institute, the Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, and Law Enforcement Alliance of America, written by David Kopel, was filed (See link to the docket in the main 2A cases thread - it's item #45.1).

If you read nothing else, read that amicus brief, as David explains in great detail, why there is no need for the court to reach any scrutiny. Plus, David Kopel is always fun to read!

Also filed was the response to the counties cross motion, along with declarations by Sean Brady, Carlisle Moody, Gary Mauser, Brian Patrick and Edward Peruta. The declarations are specific, as they attack several points of Prof. Zimring and the Brady's in general. Sean's declaration appears to show some bad faith conduct on the part of the defendant. Edward Peruta's declaration appears to show prior bad faith on the part of Sheriff Gore and/or his office.

Also filed was an objection to Zimrings declaration on grounds that Zimring was not entering evidence but mere opinion.

Ordinarily, I would say the parties are in for a major fight, but with the capitulation of Sacramento (was the Sykes case), we might actually see a consent decree come out of this. Sooner than later.

 

[Al Norris]

When Judge Gonzales made her preliminary ruling, some months ago, there was a ray of hope that she would be an actual impartial Judge.

With her ruling, published today, Judge Gonzales has reversed herself 180 degrees from that initial ruling. I can think of a lot of reasons why this might be so, and none of them are complimentary to her.

First, the Judge defines the "scope" of the right to permit handguns in the home and in the home, only.

Judge Gonzales opines that the ability to openly carry an unloaded handgun is protection enough for a citizen. The Judge does not touch on the issue of the CA Gunfree School Zones that make it a misdemeanor to possess within 1000 feet of a K-12 school (without a concealed permit - statutorily exempted). Therefore, unloaded open carry does not place a burden upon the right to carry and the inherent right to self defense.

While the Judge references Heller and McDonald, in that rational basis scrutiny and interest balancing were rejected by the Supreme Court, she then goes on to say that strict scrutiny is not warranted and therefore intermediate scrutiny will be used. Mincing around these words, the Judge then balances the reasonableness of the the County's methods of defining "good cause."

Judge Gonzales then irrationally conflates illegal concealed carry with lawfully concealed carry and the County's obligation to protect the public from harm caused by guns.

Sorry, words fail me to write further.

See the docket for the case. Item #64 is the order denying the plaintiffs motion for partial summary judgment and granting the defendants motion for summary judgment.

 

[Standing Wolf]

That ruling is an embarrassment to the word "stupid." I hope the "ruling" will be appealed.

 

[jonbirdt]

Nordyke is still pending and Kozinski could save us with a strict scrutiny application, or at least fixing the "core right" argument. (ever the optimist).

 

[HoraceHogsnort]

I'm hope'n this can be appealed?

 

[jaydubya]

Folks, I'm a San Diegan and I am devastated by this ruling. Just about everything the judge said in court indicated that she saw merit in the case. Add to it the tossing out of two other federal court cases on ammunition sales in California, and . . . . Aw Shucks.

Jack

 

[maestro pistolero]

I am a former San Diegan and a Calgunner. Ironically, I was in SD when the decision came down. Extremely disappointing, and even more so because it seemed like the judge 'got it'.

It is bad enough for a judge to be so blinded by ideology that she can't see beyond it. But it's entirely another matter when the they do 'get it' then rule according to their personal philosophy anyway. It's very hard not to lapse into dark cynicism. The ruling is an intellectual embarrassment. The dots simply cannot be connected.

This is the conclusion I have come to, as posted at Calguns:

A direct attack on California's unloaded requirement for open carry might be the fastest path to shall-issue, for all the reasons you can probably guess. (if you don't already know this, Californians must carry unloaded, thus: UOC=Unloaded Open Carry. Thanks, Al)

Because Heller clarified a right to carry a functional firearm, defeating the unloaded requirement rests on a single question: Is carry protected outside of the home, or not?

Once the anti-gunners have to actually LOOK at loaded guns in public, shall-issue will be a gigantic relief for them, instead of something to resist.

Imagine if 1 out of 100 or even 1 out of 500 people encountered by California anti-gunners was legally carrying a loaded weapon, and there was nothing they could do about it?

That, as they say, is a game changer. I believe the legislature would be stepping over themselves to get them out of sight.

Another hurdle with going after CCW first is that, with caveats, such laws are 'historically constitutional', according to Heller. Open carry is historically protected, and a clearer path, IMO. Either way, we are going to have to fight it all the way up the line, so why make the path more circuitous than it needs to be? Throwing concealment into the the pot adds a hurdle we don't need.

I say we get carrying a functional firearm outside the home protected by the courts, then use the political and social pressure to force shall issue. Realize we may not get CCW from the courts, and without protected LOC (Loaded Open Carry), we won't get it from the legislature either.

It then boils the issue down to a single, basic question that, except for location, has already been answered in Heller and McDonald.

 

[Al Norris]

Maestro, before you use the terms, you will need to define them. Most people outside of CA don't have a clue what LOC means, let alone other CA specific terms like UOC or LUCC.

See, when the majority (41) of the States already have open carry (12 States unregulated; 16 States mostly unregulated; 13 States licensed), these CA terms are hard to understand. There's no context.

Most people outside of CA don't have a clue that the Judge is equating Unloaded Open Carry (UOC) as being the functional equivalent of a functioning firearm that is loaded and carried openly.

Further, the fact that anyone (in CA) who is openly carrying an unloaded handgun can be arbitrarily stopped by a LEO and have his firearm searched (after being proned-out, in some cases) to be sure it is unloaded (In CA, this is not a 4th amendment violation - so the courts have said), is unknown to the rest of us.

 

[gc70]

I tend to agree with Maestro - and not just regarding California. Al, your comment that trials and tribulations of open carry are "unknown to the rest of us" is a bit of an overstatement. On paper, many states are friendly to open carry, but that does not stop local law enforcement in many locales from harassing those who open carry, using such nebulous charges as disorderly conduct, disturbing the peace, or (my favorite in my home state) going armed to the terror of the people. Although those of us on this board see a clear legislative choice between open or concealed carry, that choice is not so legally obvious until guns are unambiguously judicially freed from the home.

 

[maestro pistolero]

Thanks, Al. I tried to universalize my post, but overlooked the abbreviations. I will edit a couple of things now.

 

[Al Norris]

Gc70, it's not so much "that trials and tribulations of open carry are 'unknown to the rest of us'" as it is the CA specific things.

In most of the nation, when someone openly carries, the handgun is loaded. As a defensive tool, it has to be loaded. That's the "common" thinking. In CA, that handgun must be unloaded to be lawful.

In the most of the nation, we have several federal cases that establish that LEO's have no ARS to stop a person, simply because they are carrying openly.

Yes, in some few States (like CT & WI), LEO's don't like it and use whatever the courts have agreed upon, to harass the open carrier. But that's not the norm.

Regardless, in CA, it is not only the norm for an officer to stop and check your firearm, it's written into the law. You want to carry a handgun openly? Then it must be unloaded and any officer can approach you, stop you, and check to make sure you are complying with the law. This is known as an "E" check (CA P.C. 12031(E) - IIRC).

Since this is a relatively new phenomenon in CA, many officers aren't aware of the legalities and will arrest you on sight for felony carry.

Now add to the mix, the CA GFSZ law. Unless you are absolutely sure of where all those K-12 schools are, you are committing a felony to carry openly within a 1000 feet of the school. They prosecute that law with vigor in CA.

Carrying openly in CA is fraught with peril, more so than in any other State, where open carry is lawful.

The Judge in this case, just ruled that as long as you could carry a handgun (unloaded), your right to bear arms is not implicated. As I said, the Judge has just established that Unloaded Open Carry and Loaded Open Carry are equivalent for purposes of self-defense.

I stand by my prior statement. Most of us don't have a clue as to what gun owners in CA have to do, to be lawful. Most particularly, those of us that OC. Terms like LOC and UOC are unknown, except in CA.

 

[maestro pistolero]

Terms like LOC and UOC are unknown, except in CA.

Until now.

 

[jmortimer]

Those of you who live in "real America" have no idea had bad it is here. Bankrupt state controlled by government unions and liberals with yet another stupid (anti-ammunition) law to take effect in two months.. The "Dumbinator" was bad enough but with "moon-beam" back we will go further down the toilet as far as the RTKBA. We need help on a national level from SCOTUS or a reformed federal government after the 2012 elections. At least the majority of States are moving in the right direction and the huge, and largely unreported, landslide in state houses by (mostly) conservatives will kick the can in the right direction. I can only pray for the Federal imposition of the RTKBA here.

 

[44 AMP]

jmortimer, I feel your pain, but brother, be careful what you wish for!

If the feds come in and set things right (as you see them) this time, then they have the legal power to come in and set things right (as they see them) at some later date of their choosing.

The best thing would be for the good people of California to band together polically and elect people of like minds who will set things right, no matter how painful that would be to certain cherished liberal concepts.

Unfortunately, barring some kind of major upset, I see your chances for that as slim and none, and slim seems to be out of town.

Getting the fed to step in, I see as a very dangerous precedent, and a tremendous slippery slope. One of the things we are pushing for is that fact that states still have rights. Inviting Fed intervention risks that, severely.

However, if your govt is proven both corrupt and incompetent, that might be what it comes down to. So many are taking leave of the state that the deck is stacked against you, when it comes to setting your house in order. But that doesn't mean you shouldn't try.

Not all of us will tell you to take the easy way out, and escape to what is still "free America". Keep the faith, do what you can, and know you are not alone.

The last adminsitration's mantra was "Hope and Change". We had hope. And now that the nation truly sees where they are taking us, we will have Change! Hang in there.

 

[jmortimer]

With Heller/McDonald, through incorporation, we have nationalized/federalized the Second Amendment so we got what we all wished for but there is definately a downside to incorporation.

 

[jaydubya]

Through his attorneys, Peruta has filed an appeal to the Federal 9th Circuit Court.

Jack

 

[woodguru]

I have posted to the effect that while I fully support the right to open carry, I am aware that it is a powder keg issue. That is to say that there are those who want to experience the thrill of challenging those who are uncomfortable with it as an excercise in letting them get used to seeing open carry. Their premise that you have to use it or lose it is silly, and it's idiotic to flaunt it as a means of preserving the right you already have.

The question sits, is this case in San Diego doing anything for the cause of open carry? It is my opinion that it is not. The plaintiff (as I understand it)chose to refuse to show ID while his compadre simply showed the police ID and was left alone. If he wanted to further the cause of open carry in a positive manner any incidents of being approached by the police would be done with full cooperation in the interest of drawing as little negative attention to the cause as possible. He could have showed ID and been on his way three minutes later.

There are those who prefer to support this in the name of full Nth degree "rights", but the reality of this state is that it is a right we currently already have and it doesn't make sense to bring something you can already do to negative awareness. I open carry and do it without drawing attention to it or making the news. I can see the way this is headed with those who choose to make an issue of a non issue so I am getting my CWP as it won't be a problem in this county.

Some of the proponents of this as a cause are suiting up in urban warfare gear, big bulky Glocks with multiple mag holsters sticking out to the side to where their arms are out at darn near a 45 degree angle, and gearing up for the Starbucks confrontation.

That is stupidly pointless and will stir up the anti gun hornets nest, unecessarily I will add.

When I open carry I know what the threats in my life are and I do it to protect myself against them. When I go to leave my car I decide whether the possibility of "needing" a weapon in the store exists. Typically I consider the chance of negative attention to be worse than the potential of a robbery which has nothing to do with me if I choose to make it that way. The scenarios the well equipped urban warrior "needs" to be ready for are quite creatively constructed to say the least.

 

[Al Norris]

Woodguru, I think you have your cases rather mixed up.

Ed Peruta, the lead plaintiff in this civil rights suit, is seeking to obtain a concealed carry permit, from the San Diego County Sheriff.

The first time he filed, he was denied because he was not a full time resident of the County.

I believe the case you are thinking of is, Wolanyk v. San Diego. This was an unloaded open carry case in which the plaintiff was arrested. Not only did Mr. Wolanyk win his civil suit for false arrest, he got his record expunged and recieved enough in damages to pay his attorney (and keep a bit for himself). The case was settled towards the end of Sept. 2010.

 

[woodguru]

You are right, that is the one I was thinking about. On that case that little win for the plaintiff pushed way too far toward winning a stupid little victory at the expense of bringing the weight of the anti gun state into it at the cost of open carry.

I'll have to look at the Peruta case so I know what I'm talking about.

 

[Al Norris]

The appeal was filed on Monday, the 23rd of May. The link to the filing is in this post, in the Current 2A Cases thread.

While the file is 2.1MB in size and comprises 143 PDF pages, the actual brief is only 64 pages. Still, a daunting read to those not used to such things. The best way to sum it up is this:

The attack against the County of San Diego and the District Court start very early in the arguments.

The foundational error underlying the district court’s decision to grant County’s summary judgment motion was its failure to find the Second Amendment protects, generally, a right to bear loaded firearms for self-defense. This is evident from the way the court framed the question presented:

The district court followed the “minimalist view” of Heller. Generally speaking, the minimalist view entails narrowly reading the holding and findings that support it, while broadly reading dicta regarding “presumptively lawful” restrictions on the right to arms in an effort to (1) keep the right to arms home-bound, or (2) at least keep “core conduct” protected by the right home-bound, and thereby (3) lower the level of scrutiny applied to regulations of the right outside the home.

In Heller, the Court engaged in a seven-page, in-depth analysis of the meaning of “bear” when used with “arms.” See Heller, 554 U.S. at 584-91. At the end of its analysis, the Court concluded that, “[p]utting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Id. at 592. Nowhere in that extensive analysis did the Court consider bearing unloaded arms. Heller viewed the right to “bear arms” as being the right to carry them for the specific purpose of being “armed and ready” for “defensive action in a case of conflict with another person.” Id. at 584, citing Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)).

In short, the notion that the right to bear arms extends only to unloaded arms was so foreign that it was not considered by the Court.

In sum, based on the analytical approach applied in Heller, the court may not hold that the right to bear arms operable for self-defense use, i.e., loaded arms, is not protected – even “core” – conduct under the Second Amendment without some historical inquiry into the Framer’s intent similar to the Court’s inquiry in Heller. Nor may the court rely on an unloaded, open carry scheme to fill the void created by banning both open and concealed loaded carry; not without first providing some evidence that it actually does fill the void (or, more appropriately, placing the burden on County to do so).

Chuck Michel goes into a quite lengthy treatise on why UOC (Unloaded Open Carry) not only "unduly burdens" the right (Planned Parenthood v Casey) but is a "substantial burden" (Nordyke) that in practice, defeats the right of self-defense entirely.

He attacks not only the County, but the Court for not holding the County to the standards of (claimed) intermediate scrutiny, but also the Court itself for its many errors. Most of which are in the category of believing the County without the County providing any facts to refute the plaintiffs allegations.

Chuck Michel holds the District Judges feet to the fire. He also makes quite a bit of hay with the Nordyke panels decision, which I'm sure the panel didn't intend.

All in all, quite a good read. Now we will see what the 9th does.