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View Full Version : Peruta v. San Diego: ILEETA Files Amicus Brief in Ninth Circuit CCW Case


sbrady@Michel&Associates
05-31-2011, 10:49 AM
On Monday, May 23, 2011, the CRPA Foundation and a number of San Diego residents had attorneys from Michel & Associates, PC file their opening brief in the Ninth Circuit Court of Appeals in their appeal seeking to overturn a U.S. District Court ruling from December 10, 2010 that upheld San Diego Sheriff William Gore’s restrictive and unfair policies in issuing permits to carry concealed firearms. The case is Peruta v. County of San Diego.

On May 30, 2011, the prestigious International Law Enforcement Educators and Trainers Association (ILEETA) and the Independence Institute joined in the Peruta appeal, filing a friend-of-the-court amicus curiae brief in support of neither party. ILEETA’s brief (http://michellawyers.com/wp-content/uploads/2011/05/ILEETA-Amicus-Brief.pdf) points out the inadequacies of unloaded open carry (“UOC”) as a self-defense strategy. The brief references some compelling videos, specifically made by ILEETA, that show under various situations why UOC is inadequate as a way to defend oneself. (See the videos here (http://michellawyers.com/videos-referenced-in-ileeta-amicus-brief-in-peruta-v-san-diego-appeal)). The brief was authored by legal scholar and prolific writer, Professor David Kopel.

Under California law, a permit to carry a concealed firearm (CCW) should be issued if an applicant has “good cause.” The Peruta lawsuit asserts that under the Second Amendment, a desire to have a CCW for self-defense must constitute “good cause.” The lawsuit challenges San Diego’s requirement that an applicant demonstrate some special need or a specific threat in order to get a CCW as an unconstitutional restriction on the fundamental right to carry a firearm ready to be used for self-defense.

The District Court held that people do not need a CCW to "bear arms"-at least not loaded arms-for self-defense purposes. The court found that, "as a practical matter," California allows you to carry an unloaded handgun openly in a holster (Penal Code Section 12025(f)) and, if attacked, you can simply load it to defend yourself (Cal. Pen. Code section 12031(j)). But as the legal briefs filed on appeal point out, and as the ILEETA videos clearly show, there is nothing "practical" about the court's finding. In addition to the various legal restrictions on openly carrying an unloaded firearm, which require one to be in “immediate and grave danger” before a gun can be loaded, the time needed to load it makes it useless in a self-defense emergency. In short, unloaded open carry does not allow for effective self-defense, nor is it an effective way to exercise your fundamental right to be ready and able to defend yourself under the Second Amendment. Plaintiffs are asking the Ninth Circuit to overrule the district court's decision. (See opening appellate brief here (http://michellawyers.com/wp-content/uploads/2010/11/Peruta-Opening-Brief.pdf)).

The ILEETA brief is the latest in a series of amicus briefs that have been filed in the case so far. On May 27, 2011, the National Rifle Association weighed in with an amicus brief authored by former Solicitor General and renowned constitutional litigator Paul Clement. The NRA's brief reiterates the position NRA took in a previous amicus brief filed with the Ninth Circuit in the Nordyke v. King case, that infringements on the right to bear arms, must be reviewed under a strict scrutiny standard. The brief continues though, arguing that even if the "substantial burden" test, ultimately adopted by the Ninth Circuit in the Nordyke case is the proper test for reviewing Second Amendment infringements, San Diego County's CCW issuance policy still fails. (See NRA’s amicus brief here (http://michellawyers.com/wp-content/uploads/2011/05/Peruta_NRA_s-Amicus-Brief-ISO-Appellants_Reversal.pdf)).

On May 25, 2011, the Congress of Racial Equality (CORE) filed an amicus brief, authored by Second Amendment scholar and author of "The Framer's Second Amendment," Stephen P. Halbrook. The CORE brief emphasized how the right to “bear arms” does not stop at one’s doorstep, and gave a historical analysis of the Fourteenth Amendment, discussing how discretionary firearms licensing laws were an incident of slavery. (See CORE’s amicus brief here (http://michellawyers.com/wp-content/uploads/2010/11/Peruta_Corrected-Amicus-Brief-for-Congress-of-Racial-Equality-Inc..pdf)).

More amicus briefs are expected to be filed soon. To be kept up to date on these filings, subscribe to our alerts at http://michellawyers.com/subscribe.

The plaintiffs in the Peruta case include several individuals who were either denied CCWs or do not qualify under the Sheriff’s strict issuance standards, as well as the CRPA Foundation. Copies of the court filings in the lawsuit and appeal can be viewed at http://michellawyers.com/perutavsandiego.

The lawsuit and appeal are being funded by the NRA-CRPA Foundation Legal Action Project (LAP). To fight for the self-defense civil rights of all Californians, the NRA and CRPA Foundation have joined forces. Through LAP, NRA/CRPAF attorneys fight ill-conceived gun control laws and ordinances, educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners, and produce valid science about game and wildlife resource management.

To contribute to the NRA/CRPAF Legal Action Project (LAP) and support this and similar efforts and Second Amendment litigation in California, visit www.crpafoundation.org and www.nraila.org.

bwiese
05-31-2011, 11:08 AM
And there are those that say NRA/CRPA etc never does anything in CA.

Baloney.

Untamed1972
05-31-2011, 11:10 AM
nice to see someone with some sort of LE connection weighing in on this even if it's just to debunk the "UOC is sufficient" myth.

OleCuss
05-31-2011, 11:12 AM
You know? I always enjoy it when Sean posts! I almost always learn something worthwhile. . .

bwiese
05-31-2011, 11:14 AM
You know? I always enjoy it when Sean posts! I almost always learn something worthwhile. . .

Yeah, Chuck's got a great team.

I do really wish we could plagiarize the Charles Schwab ad, "Talk to Chuck" - for a marketing campaign for them :)

ddestruel
05-31-2011, 11:20 AM
And there are those that say NRA/CRPA etc never does anything in CA.

Baloney.



NRA never does anything in CA

;)


sorry i had to say it.

The way these amicus briiefs and this friend-of-the-court amicus curiae brief are stacking up it should be interesting to see how the 9th intends to thread this needle

nick
05-31-2011, 11:24 AM
And there are those that say NRA/CRPA etc never does anything in CA.

Baloney.

Well, what have they done for me recently? Oh wait... :p

BRoss
05-31-2011, 11:25 AM
Yeah, Chuck's got a great team.

I concur. ;)

hoffmang
05-31-2011, 2:39 PM
Sean,

Why is the brief in support of neither party?

-Gene

curtisfong
05-31-2011, 2:55 PM
Sean,

Why is the brief in support of neither party?



Anti judicial-activist camouflage?

sbrady@Michel&Associates
05-31-2011, 2:58 PM
Sean,

Why is the brief in support of neither party?

-Gene

Gene, you would have to ask ILEETA, but I imagine it is because they are not taking a stance on whether San Diego's policy is constitutional or not, only that, as a matter of fact, there are issues with accepting UOC as a sufficient form of self-defense. In other words, they are not making legal judgments, just factual ones.

SoCal Bob
05-31-2011, 3:30 PM
It would be amusing to do a freedom of information act on Sheriff Gore to see how many accidental discharges and negligent discharges the Sheriff's Department has had since they transitioned from revolvers to Glocks, Calm Down!, nothing against Glocks, just a training issue. Since the County's attorney successfully argued that UOC is perfectly acceptable for self defense purposes then why doesn't the Sheriff's Dept UOC to eliminate AD's & ND's.

I for one, would be fascinated to hear from Sheriff's Officials in a courtroom setting why UOC is not acceptable for them but is acceptable for self defense by Citizens. After all, they could call for help then load up when a dangerous situation presents itself, isn't that what they expect from citizens?

Untamed1972
05-31-2011, 5:12 PM
It would be amusing to do a freedom of information act on Sheriff Gore to see how many accidental discharges and negligent discharges the Sheriff's Department has had since they transitioned from revolvers to Glocks, Calm Down!, nothing against Glocks, just a training issue. Since the County's attorney successfully argued that UOC is perfectly acceptable for self defense purposes then why doesn't the Sheriff's Dept UOC to eliminate AD's & ND's.

I for one, would be fascinated to hear from Sheriff's Officials in a courtroom setting why UOC is not acceptable for them but is acceptable for self defense by Citizens. After all, they could call for help then load up when a dangerous situation presents itself, isn't that what they expect from citizens?

That would be interesting.

I have contended that if UOC is sufficient for self-defense then why is there a need for loaded CCW at all? If someone needs to carry loaded for self-defense and meets Gore's requirement for a CCW...isn't that already and admission that UOC is NOT sufficient for self-defense?

BigDogatPlay
05-31-2011, 5:43 PM
Expert analysis that UOC is not a practical means for self defense..... something we've known for years.

Might not help sway, but it (along with GFSZ, sensitive places and the like) puts the nails into the coffin of the canard that UOC is an effective means of self defense.

Untamed1972
05-31-2011, 6:01 PM
Expert analysis that UOC is not a practical means for self defense..... something we've known for years.

Might not help sway, but it (along with GFSZ, sensitive places and the like) puts the nails into the coffin of the canard that UOC is an effective means of self defense.

I think the only real defense to that issue needs to be: "Agents of the gov't do not carry unloaded guns. End of discussion."

randian
05-31-2011, 6:18 PM
Why is the brief in support of neither party?
They probably don't want to be seen as officially opposing the anti-gun positions so many police departments have. An organization with a name like theirs might not want to burn that bridge, the fact that the brief itself undermines the anti-gun position notwithstanding.

2Bear
05-31-2011, 7:33 PM
I feel compelled to post this here as well...
y2MxlwU9Pq4

Teacher Sp Ed
05-31-2011, 7:44 PM
Today I mailed in my NRA renewal. It sat on my desk for a week while I pondered. Glad I did. Sometimes I am slow... must log on and send same to crpa foundation.

Keep up the good work

G60
05-31-2011, 10:40 PM
Very easy to read and enjoyable.
One thing that is of concern is:
"Amici agree with the legal proposition that a legislature may ban
concealed carry, or may effectively prohibit concealed carry via a highly
discretionary licensing system such that almost no-one is granted a
permit—so long as open carry is allowed."
Did they omit "loaded" between "open" and "carry" or do they agree unloaded open carry is OK, even though they just argued it's worthless?

hoffmang
06-01-2011, 12:25 AM
Gene, you would have to ask ILEETA, but I imagine it is because they are not taking a stance on whether San Diego's policy is constitutional or not, only that, as a matter of fact, there are issues with accepting UOC as a sufficient form of self-defense. In other words, they are not making legal judgments, just factual ones.

That seems a bit odd since ILEETA supported the McDonald petitioners, don't you think?

-Gene

safewaysecurity
06-01-2011, 12:52 AM
That seems a bit odd since ILEETA supported the McDonald petitioners, don't you think?

-Gene

I kind of think it looks better if they stay neutral and state the fact that UOC is not practical and insufficient for self-defense.

wildhawker
06-01-2011, 12:54 AM
I kind of think it looks better if they stay neutral and state the fact that UOC is not practical and insufficient for self-defense.

When LE goes green (e.g. "active support") on a bill or a case, it's far more powerful than going neutral.

-Brandon

safewaysecurity
06-01-2011, 1:18 AM
When LE goes green (e.g. "active support") on a bill or a case, it's far more powerful than going neutral.

-Brandon

Well I would guess that the judges would just think such an organization was in the pocket of the NRA or something because as far as I know LEETA is a private organization and not something like the police chief associations. But when such organizations remain neutral and just represents facts I think it's good. Now if we got the police chiefs and sheriffs to do a brief or something that would be nice.

Liberty1
06-01-2011, 3:25 AM
Wish the 'civilian' moniker wasn't used as police are civilians. I prefer using 'private person' as a more accurate descriptor. But I'm glad to see the excellent argument!

Sgt Raven
06-01-2011, 6:33 AM
Wish the 'civilian' moniker wasn't used as police are civilians. I prefer using 'private person' as a more accurate descriptor. But I'm glad to see the excellent argument!

Roger that, Police are part of the 'Civil Authority's'.

sbrady@Michel&Associates
06-01-2011, 11:15 AM
That seems a bit odd since ILEETA supported the McDonald petitioners, don't you think?

-Gene


No. Nor do I think it is relevant.

Librarian
06-01-2011, 12:51 PM
On May 31, 2011, three more amicus curiae friend-of-the-court briefs were filed in Peruta.

Amici curiae Center of Constitutional Jurisprudence (CCJ), Doctors for Responsible Gun Ownership, and the Law Enforcement Alliance of America, represented by constitutional law scholar and former Dean & Henry Salvatori Professor of Law & Community Service at Chapman University, School of Law, Dr. John Eastman. CCJ’s brief deals with the long-standing historical recognition of the right to carry loaded firearms for self-defense from state courts and acknowledged by the Supreme Court in Heller.

Renowned civil rights activist and attorney Don B. Kates filed Don B. Kates filed an amicus brief on behalf of Gun Owners of California and Senator H. L. Richardson, discussing the history of California’s firearms laws regulating concealed and loaded carry, and how its leaving lawful the open carry of unloaded firearms was a loophole, never intended as a means of self-defense carry as the lower court concluded. It also addresses the trend of liberal CCW issuance from a criminological perspective.

Alan Gura filed an amicus brief generally in support of Plaintiffs on behalf of the Second Amendment Foundation, Calguns Foundation and two individuals weighing in with their view of the proper standard of review in this case.

Haven't read these yet...

2Bear
06-01-2011, 2:56 PM
I feel compelled to post this here as well... :p

NRA Pushes for Concealed Gun Carrying in California

On May 27, 2011, the NRA weighed in on this appeal with an amicus brief authored by former Solicitor General and renowned constitutional litigator, Paul Clement. The NRA’s brief reiterates the position NRA took in a previous amicus brief filed with the Ninth Circuit in the Nordyke v. King case, that infringements on fundamental rights, like the right to bear arms, must be reviewed under strict scrutiny. The brief continues though, arguing even if the “substantial burden” test that was ultimately adopted by the Ninth Circuit in Nordyke is the proper test for reviewing Second Amendment infringements, San Diego County’s CCW issuance policy still fails. <...>

The lawsuit and appeal are being funded by the NRA-CRPA Foundation Legal Action Project (LAP). To fight for the self-defense civil rights of all Californians, the NRA and CRPA Foundation have joined forces. Through LAP, NRA/CRPAF attorneys fight ill-conceived gun control laws and ordinances, educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners, and produce valid science about game and wildlife resource management.

To contribute to the NRA/CRPAF Legal Action Project (LAP) and support this and similar efforts and Second Amendment litigation in California, visit www.crpafoundation.org and www.nraila.org.

http://www.opposingviews.com/p/nra-pushes-for-concealed-gun-carrying-in-california

NRA Amicus brief: http://michellawyers.com/wp-content/uploads/2011/05/Peruta_NRA_s-Amicus-Brief-ISO-Appellants_Reversal.pdf

Perhaps CGF should craft a voice for OpposingViews.com

hoffmang
06-01-2011, 9:04 PM
No. Nor do I think it is relevant.

I kind of think it's relevant that an organization that supported incorporation now doesn't support the constitutionality of shall issue carry licensing. Some friend.

I might even worry it undermines their credibility that UOC isn't a valid method of self defense.

-Gene

Maestro Pistolero
06-01-2011, 10:39 PM
By not taking a position, but nevertheless stating facts which overwhelmingly support the appellants, they are supporting us, but with a thin veil of impartiality. They are a law enforcement training organization, and thus potentially subject to political fallout from the politician/upper LE management-types that could impact their funding and their ability to be an effective organization.

I am a little sympathetic, as I can understand they are a bit out on a limb here, even without stating their support outright. I appreciate their contribution. May it help the cause.

curtisfong
06-01-2011, 10:44 PM
Anti judicial-activist camouflage?

bump :P

safewaysecurity
06-01-2011, 10:45 PM
By not taking a position, but nevertheless stating facts which overwhelmingly support the appellants, they are supporting us, but with a thin veil of impartiality. They are a law enforcement training organization, and thus potentially subject to political fallout from the politician/upper LE management-types that could impact their funding and their ability to be an effective organization.

I am a little sympathetic, as I can understand they are a bit out on a limb here, even without stating their support outright. I appreciate their contribution. May it help the cause.

This