CGF Applauds NRA Efforts,
Issues Challenge to Allegedly
On March 26, 2015, the U.S. Court of Appeals for the Ninth Circuit vacated its prior February 13, 2014, opinion in Peruta v. County of San Diego, 10-56971 (9th Cir. 2014), pending rehearing by an en banc panel.
While the Peruta opinion may no longer be binding on California sheriffs pending its rehearing, we believe its reasoning and conclusions still hold true and will be affirmed either by the en banc panel or the Supreme Court. Oral argument on the consolidated Peruta and Richards actions will take place on June 15, 2015. The reactions of various sheriffs to the Peruta opinion and to its vacation pending rehearing are eye-opening, showing the true colors of these sheriffs beyond their rhetoric.
Orange County Sheriff-Coroner Hutchens had begun issuing CCWs to normal, law-abiding citizens with general desires for self-defense post-Peruta, to much applause by gun rights advocates. Over the course of the last year, about 5,000 CCWs were issued in Orange County.
However, as soon as the Peruta opinion was vacated pending rehearing, Sheriff-Coroner Hutchens issued a press release announcing the return of the Orange County Sheriff's Department's prior Policy 218, re-establishing her prior heightened “good cause” requirement that previously prevented normal, law-abiding citizens from carrying a firearm in public for protection of self and family.
Unfortunately, she attempted to shirk her responsibility, arguing that the vacation of the opinion by the Ninth Circuit somehow required her to revert to OCSD’s prior, unconstitutional policies.
A recent court decision has required a revision to the Sheriff's Department’s Carry Concealed Weapon policy. . . .
[I]n 2008 the existing law required sheriffs to issue CCWs using a good-cause standard. . . .
As a result [of the 9th Circuit's en banc vote], I must once again require CCW applicants to articulate their safety concerns and provide supporting documentation prior to being issued a permit. (Emphasis added)
In Sheriff Hutchens’ view, California law and the Ninth Circuit’s vacation of the Peruta opinion left her no choice.
Sheriff Hutchens also announced that the approximately 2,500 people currently in the CCW application process would be required to provide "additional good cause" to warrant issuance or they would be denied. This broad statement extended to those who had already been approved for their CCW and were merely waiting to complete training.
Fortunately for gun-rights advocates, fellow advocates from the National Rifle Association and California Rifle and Pistol Association (collectively “NRA”), represented by Chuck Michel of Michel & Associates, sent a scathing rebuttal to Sheriff Hutchens on April 8, 2015, unequivocally showing the error of her stated position.
[T]hat is not the law. Nothing the federal court said requires—or even could require—sheriffs to adopt a "good cause" policy mandating that CCW applicants show more than a desire for general self-defense. California law does not require sheriffs to do so either. To the extent you continue to rely on Attorney General Opinion No. C.R. 77/30 I.L., an opinion from 1977, as saying otherwise, such interpretation is as erroneous today as it was years ago when you first adopted a strict "good cause" policy based on it. Nothing in the Attorney General's Opinion compels sheriffs to adopt any particular policy, and to the extent it does, it is in conflict with the numerous appellate court decisions that have unanimously held that California Sheriffs have extremely wide discretion in establishing a "good cause" standard, whether it be a strict or liberal one. . . .
Refusing to let Sheriff Hutchens shirk her responsibilities, they called her out for cloaking her policy choices with "requirement" language and attempting to place blame for her free choices on the courts, stating that, “in the nearly 95 years that the state has authorized CCW licensing, every case discussing ‘good cause’ has made it clear that sheriffs are essentially unrestrained in establishing a ‘good cause’ standard . . . confirm[ing] that sheriffs have ‘unfettered’ discretion to decide what ‘good cause’ standard to use—whether that be the relaxed on previously mandated by the Peruta opinion or a strict one like Policy 218.”
This is just as true today as it was before Peruta, and will remain true even if Peruta is ultimately overturned. Gun rights advocates – such as the NRA, CRPA, CAL-FFL, or the Calguns Foundation – will not stand idly by while elected sheriffs cloak discretionary policy choices as merely “enforcing the law” as written. If Sheriff Hutchens or any other California sheriff chooses to require heightened “good cause” beyond a generalized desire for self-protection, they must do so admitting that this is merely their policy preference.
Because you are relying on a demonstrably erroneous legal premise for reverting back to Policy 218, should you continue to rely on strict "good cause" standard following receipt of this correspondence, it will be clear that such is merely your policy preference. Respectfully, you should admit such is the case so that your constituents know where you truly stand on this very important issue. For you can no longer stand behind the cloak of an illusory legal mandate. (Emphasis added)
The NRA further attacked Sheriff Hutchens on announced policies that conflicted with express state law governing the CCW issuance process and preempting local procedures, application(s) (including additional documentation or forms), or bureaucratic hurdles beyond those authorized by California law.
Sheriff Hutchens did not attempt to contest or deny the NRA’s analysis, but responded within a week, admitting OCSD’s reversion to the prior, strict Policy 218 was a voluntary policy choice on her part and agreeing to modify her prior-announced changes in procedure to comport with California law as explained by the NRA.
We applaud the efforts of our brothers and sisters at the NRA, and could not agree with them more on this important issue. Their timely and factual refutation of Sheriff Hutchens' misrepresentations an unlawful policies forced her to immediately back down, allowing CCW applications that had been in limbo to move forward. Because of their work, approximately 1,700 more "good guys with guns" will be carrying in Orange County.
Moreover, we believe NRA's arguments apply equally to other sheriffs' procedures.
For example, Riverside County Sheriff Sniff has made a name for himself as a vocally-"pro gun" sheriff, writing widely publicized letters to various state senators and the governor opposing gun control bills. You may have read about his support in web forums and thought "finally, a sheriff who supports my rights!"
Unfortunately, while he may "talk the talk," his issuance policies do not "walk the walk," failing to comport with his proclaimed love of the Second Amendment.
For a year, he falsely claimed that Peruta was stayed or otherwise not binding law due to the California Department of Justice's pending appeal attempt. Having ignored binding precedent in the form of the original Peruta decision for over a year, his misstatements – that “the earlier Court decision is not yet law” – have finally come true with the vacation of the prior opinion. Better late than never!
However, for a Sheriff who has made a name for himself as a self-proclaimed “Pro-Gun” sheriff, this doesn’t – or at least shouldn’t – change a thing. The NRA's analysis holds as true for the policies of RCSD as it did for those of OCSD.
As Sniff admitted the Valley Times in June of 2014, “leaving the issuance of concealed-carry permits to the discretion of local police chiefs and sheriffs is the law in California.” Simply put, he still retains the same power he has always had – to set CCW issuance policy based on his discretion. For a pro-gun sheriff, Peruta’s appellate status is irrelevant – nothing precludes him from setting CCW policies that comport with the Constitution and his own stated positions on the rights guaranteed by the Second Amendment.
As CAL-FFL reminded him in its letter of July 2, 2014, he has on numerous occasions gone on record before the California legislature opposing bills that delay, obstruct, or encumber the ability of Riverside County residents to defend themselves and their families. However, he has adopted CCW policies that not only impose the maximum allowable amount of bureaucratic hassle, time, expense, and burden on applicants, but go beyond that allowed by state law – adding forms, reference letters, questions, and other hurdles not allowable under state law.
His unlawful policies, such as his improperly-limited appointment system, delay carry license applicants by months before the actual application and background check process even begins, constructively denying law-abiding citizens the legal tools necessary to protect themselves and their families, all while publicly proclaiming his strong support for their right to do so.
“Arguing that anyone and everyone that wants to carry a concealed firearm in our public areas should be able to do so,” The Press-Enterprise reported Sniff as saying in an email, “is not good public policy.”
These are not the actions of a strong supporter of the Second Amendment, as Sniff claims so proudly to be.
Similarly, San Bernardino Sheriff-Coroner McMahon is a self-proclaimed pro-second amendment sheriff, who has also gone on record in opposition to new California gun laws.
Like Sniff, he too has shown shocking animosity to Peruta despite proclaiming his support for the principles underlying the decision.
In a recent filing in Birdt v. McMahon, he states that “in light of the Ninth Circuit’s decision to rehear Peruta en banc . . . there is no longer even any authority for plaintiff’s position that there is a constitutional right to conceal carry in California.”
For a Sheriff who loudly proclaims his strong support for the Second Amendment rights of San Bernardino county residents to state that there is no right to "bear arms" in public – in a lawsuit defending his belief that he should be able to deny CCWs to otherwise law-abiding citizens based on subjective judgments about those citizens' impatience with McMahon's unlawful policies – is not just completely unacceptable, but a disgrace to the Second Amendment and those who support it.
His unlawful policies are even more extensive than Riverside's, such as an improperly-limited appointment system, a notary requirement, and additional, unlawful forms. Like Riverside, these unlawful policies delay carrying license applicants by months before the actual application and background check process even begins, constructively denying law-abiding citizens the legal tools necessary to protect themselves and their families, all while McMahon publicly proclaims his strong support for their right to do so.
Gun rights advocates such as CGF or the NRA expect to be forced to drag anti-Second Amendment sheriffs from counties like Los Angeles and San Francisco into compliance with the Constitution via the courts. However, we shouldn't need the courts to drag "pro-gun" sheriffs into compliance as well. How can a sheriff claim to be "pro-gun" while scorning the very idea of a right to bear arms in public?
The gauntlet we set before Sheriffs Sniff and McMahon is the same the NRA set before Sheriff Hutchens of the OCSD. They need to either:
- Modify their CCW issuance policies such that a generalized desire for self-protection is sufficient to establish “good cause;” or
- Admit that, despite their numerous representations to the contrary, their current policies are a free exercise of their discretion that reflects their personal political preference.
The ball is in their court.