SCOTUS: DeShaney v. Winnebago County. CCW Implications?

[Spelunker]

So what is the definition of "personal liberty"?

So is a CCW a right or a privilege?

Neither heller or McDonald said CCW is a right. Maybe after a few of the current cases go through that will be hashed out. I can see where this may be useful in court.

Choprz where do you find this stuff?

[Rivers]

... the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.

So in San Diego, the Sheriff likes to put restrictions on whatever CCWs he issues, like "only valid during business activities for Acme Industries" or my favorite (so far), for a property manager of large apartment complex, "not valid in private residences." So if someone who has a CCW is attacked, injured, killed when not carrying because of the restrictions, could the SD Sheriff be held liable for damages?

[choprzrul]

So what is the definition of "personal liberty"?

So is a CCW a right or a privilege?

Neither heller or McDonald said CCW is a right. Maybe after a few of the current cases go through that will be hashed out. I can see where this may be useful in court.

Choprz where do you find this stuff?

I follow leads that cite USSC decisions and then go read those decisions. Apply some critical thought as to how they could be leveraged for our cause.

Now, to your assertion that 'Neither Heller or McDonald said CCW is a right'. May I present the following:

c. Meaning of the Operative Clause.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

Doesn't get much plainer than that. Several circuits have rendered some really bad interpretations of what SCOTUS said in Heller & McDonald, but those decisions are not controlling in the 9th, only the words of the USSC are at this point. Not sure how much plainer the supremes could make it. I suppose that it will take a circuit split for USSC to once again get involved.

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[Maestro Pistolero]

What in God's name does "in the clothing or in a pocket" mean, if not concealed?

[Firemark]

It would appear to me that any LE agency that denies a CCW is accepting responsibility and liability for that person's safety:



We know that the police are under no obligation to protect us per the above SCOTUS decision(the part in Red above). However, the supremes left open (rather concisely) those conditions whereby the police ARE liable for our protection(bold & underlined above).

Now, if I apply to my local CLEO and my county sheriff for a CCW permit, and am subsequently denied a permit, under this decision, would those law enforcement agencies become instantly responsible for my personal security via this clause: "...from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."? Heller & McDonald established that Keep, Bear, and Self-Defense as fundamental, individual, civil rights, i.e. Liberties. A CCW denial is a Liberty denial.

It looks to me like law enforcement agencies are opening themselves up to giant amounts of personal injury liability each time they deny a CCW. I could see a cottage industry developing for personal injury attorneys who pursue these types of cases. Imagine how many people would apply for a CCW just on the outside chance they got hurt down the line and could sue for damages in the millions.

Unfortunatley or fortunately depending how you look at, Peruta v San Diego judge Gonzales ruled that the sheriff may deny a CCW because in CA the right to keep and bear arms is not being denied as UOC is still available to citizens. The case is on appeal, but beasically CCW's can be denied because one may carry openly. There is another case in Yolo county that is very similar. So I think by their view open carry is the right and CC is the privelege.

[choprzrul]

Unfortunatley or fortunately depending how you look at, Peruta v San Diego judge Gonzales ruled that the sheriff may deny a CCW because in CA the right to keep and bear arms is not being denied as UOC is still available to citizens. The case is on appeal, but beasically CCW's can be denied because one may carry openly. There is another case in Yolo county that is very similar. So I think by their view open carry is the right and CC is the privelege.

Even then, because of CA's GFSZ law, the UOC'er must lock up the sidearm while within that zone. Per Deshaney, at that point the government must provide for that denied individual's self defense due to "...the limitations which it has imposed on his freedom to act on his own behalf...". This is the beauty of it. They are now responsible for my self defense because the state has imposed restraints on my ability to act on my own behalf. Failure by the state to protect me when I am any place that I am not allowed to carry a functional firearm for the purpose of self defense, becomes a potential liability via lawsuit for the government.

All it will take is 1 successful lawsuit somewhere in the nation for this to all fall apart for these gun restrictions.

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[Californio]

choprzrul, good find they can't have it both ways.


According to Sheriff Bill Brown: "Make no mistake. These cuts will result in diminished public safety in Santa Barbara County."

This is Sheriff Brown on the current budget problems, the same Sheriff Brown who will not issue CCW permits.

[choprzrul]

choprzrul, good find they can't have it both ways.


According to Sheriff Bill Brown: "Make no mistake. These cuts will result in diminished public safety in Santa Barbara County."

This is Sheriff Brown on the current budget problems, the same Sheriff Brown who will not issue CCW permits.

Thanks, but I am awaiting judgment from the Right People before deciding how effective this approach will be in the future.

[choprzrul]

For review, I have copied from the actual text (and more of it) below and not the syllabus. This is a fine line I believe, one that pivots upon the individual's ability to protect himself with or without the limitations placed upon his liberties. If the individual is simply unable to provide for his own self defense without a weapon, and the state denies a CCW, then this may kick in. Anyway, here more of the decision:

Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain "special relationships" created or assumed by the State with respect to particular individuals. Brief for Petitioners 13-18. Petitioners argue that such a "special relationship" existed here because the State knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Id. at 18-20. Having actually undertaken to protect Joshua from this danger -- which petitioners concede the State played no part in creating -- the State acquired an affirmative "duty," enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952), as to constitute a substantive due process violation. Brief for Petitioners 20. [n4] [p198]

We reject this argument. It is true that, in certain limited circumstances, the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.The rationale for this principle is simple enough: when the State, by the affirmative exercise of its power, so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo, supra, at 315-316. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, at 103 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met"). In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.

The CA PC says that I can carry in my home and at my business. The state restrains my individual freedom to act on my own behalf beyond those confines. I am a 60% disabled veteran that has been denied CCW. This means that, beyond my home & business, I have been separated from my individual civil rights to Keep and Bear functional firearms for the purpose of self defense by the state. The state has acted to restrain, now they must step up and take full responsibility for my safety and well being outside my home & business.

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[Tripper]

I agree

[Maestro Pistolero]

How the hell did you find this? It directly supports what many of us have been hoping will be the criteria used to define sensitive places, i.e. that if government suspends the right to self defense that it must assume that burden on behalf of the citizen.

Truly a great find.

[Anchors]

Awesome argument.
Tagged for future developments.

[choprzrul]

Nearly 800 views on this thread, but yet not a single one of the Right People have weighed in yet. Curiously absent they are.

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[Maestro Pistolero]

Nearly 800 views on this thread, but yet not a single one of the Right People have weighed in yet. Curiously absent they are.

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Mmmmm hmmmmm. :

[command_liner]

Nearly 800 views on this thread, but yet not a single one of the Right People have weighed in yet. Curiously absent they are.

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Noticed this anomaly in the force too I did.