Gun carry suit 'back to square one' :: 04/13/2015

San Diego — The law concerning who can carry concealed weapons in California is once again in limbo.  It’s been more than a year since a divided panel of the 9th U.S. Circuit Court of Appeals ruled that self-defense is reason enough for law-abiding citizens to carry concealed firearms — a victory for gun-rights advocates.

Now, that decision has been put on hold, as a larger panel of judges within the same court prepares to rehear the case in June.

“We’re really back to square one,” said Senior Deputy County Counsel James Chapin. He’s helped defend the San Diego County Sheriff’s Department’s long-standing policy on concealed-carry permits since the lawsuit challenging it was filed in 2008.

The new hearing puts the Sheriff’s Department in a unique position.

When a 9th Circuit three-judge panel in February 2014 deemed the department’s permitting policy over-restrictive and unconstitutional, Sheriff Bill Gore said he would not fight the ruling, explaining, “I don’t make laws, I carry them out.”

Now the county is being asked once again to resurrect its arguments and defend its policy, which for decades has held that a person typically needs to state a specific threat — such as having a stalker or having a job that involves carrying large amounts of cash — to be granted a permit to carry a concealed weapon.

Arguments are to be heard the week of June 15 in San Francisco; an exact date has not yet been set. The en banc hearing, which means before the entire bench, will be in front of the chief judge and 10 other judges chosen at random.

The way the rehearing came about is somewhat unusual. Rather than consider a petition for a rehearing from the plaintiff or defendant, as is often the case, one anonymous judge asked his or her peers to vote on the matter. The court can rehear a case if the majority of judges feel there is a conflict with other federal court decisions, or if they consider the issue of exceptional importance.

The 9th Circuit’s makeup is also worth considering: The dissenting judge on the court’s original 2-1 decision loosening the restrictions, Sidney R. Thomas, has since been appointed chief judge. Thomas is a former Montana attorney appointed to the bench by President Bill Clinton in 1995.

The case stems from a lawsuit filed by independent news service owner and part-time San Diego County resident Edward Peruta, as well as other gun owners who were denied concealed-carry permits by the Sheriff’s Department. They are joined by California Rifle and Pistol Association.

Observers say this appears to be positioned to become a defining case when it comes to the Second Amendment right to bear arms. Resulting rulings could elaborate what has already been established in District of Columbia v. Heller, the 2008 landmark Supreme Court case that upheld the right to bear arms to defend oneself, such as in one’s home, but not necessarily outside the home.

In the now-chief judge’s dissenting view in Peruta’s case in February 2014, he pointed to conflicting case law on the subject.

“Simply put, concealed carry presents an entirely different Second Amendment issue from possessing handguns in the home for self-defense,” Thomas wrote. “As the Supreme Court recognized, … courts and state legislatures have long recognized the danger to public safety of allowing unregulated, concealed weapons to be carried in public.”

Peruta’s case is among the last standing in a recent group filed to clarify the issue. Federal appeals courts in New York, Maryland and New Jersey have recently upheld policies similar to San Diego’s that require specific circumstances to lawfully carry guns outside the home, and the Supreme Court declined to hear those appeals.

Sean Brady, a lawyer with Michel and Associates who is helping to defend Peruta’s case, framed the central question this way: “If there is a right to bear arms — and so far no circuit (court) has disputed there is — then can a government official determine whether someone who seeks to exercise that right has a good enough reason?”

Conservative Supreme Court Justice Antonin Scalia said in a 2013 interview with the Washington Examiner that the time is ripe for the high court to hear a Second Amendment case.

Sheriff Gore said he’s not surprised by the 9th Circuit’s continued interest in this case.

“I’m not shocked they decided to hear it en banc and I’d not be shocked to see the lower 9th Circuit opinion overturned,” Gore said in an interview. “If that happens, I fully expect Mr. Peruta and his lawyer to appeal to the Supreme Court, which is where I think this case will end up.”

In a December court filing, attorneys for Peruta and other plaintiffs strongly opposed the prospect of a rehearing, and that it “will only delay the inevitable outcome.”

“Five years is long enough for the plaintiffs to wait for their Second Amendment rights to be vindicated,” they argue.

On Friday, Peruta’s lawyer Chuck Michel said in a statement: “We are prepared to address the en banc court, and appeal to the Supreme Court if necessary.”

To complicate matters, the Peruta case will be reheard alongside another out of Yolo County. The same three-judge panel that initially decided Peruta also ruled that Yolo County’s permitting policy was too restrictive.

Another wildcard is whether the court will allow state Attorney General Kamala Harris to join the Peruta case — a request she made last year after Gore announced he would not appeal the original 9th Circuit decision. The Brady Center to Prevent Gun Violence also put in a similar request.

The original three-judge panel had previously denied their intervention, saying they were making the request too late and that they didn’t have proper standing to join. But now that issue is also back on the table. Observers say the court could even issue a ruling on that matter before hearing the en banc arguments.

Orange County has perhaps felt the most immediate impact of the rehearing announcement. Sheriff Sandra Hutchens, who had been issuing concealed-carry permits under the “self-defense” cause for more than a year after the initial Peruta ruling, announced two weeks ago that she would stop for now. The roughly 4,800 people who have already obtained or are cleared to get permits under the looser guidelines will be able to keep them, although may not be able to renew the permits, said Orange County sheriff’s Lt. Jeff Hallock.

In San Diego, the Sheriff’s Department will continue to accept applications under the “self-defense” cause but is continuing to hold off on issuing permits until the case is completely resolved. “I didn’t want to change the policy and then have to change it back,” Gore said of his decision to hold off on issuing permits. “I think that would have been counterproductive and confusing.”

Gore said some 2,000 such applications have been filed with his office in the past year, and if the Peruta ruling is ultimately upheld, they will be processed in the order received.

http://www.utsandiego.com/news/2015/apr/12/concealed-gun-9th-circuit-en-banc/