CGF Applauds NRA Efforts,
Issues Challenge to Allegedly
"Pro-Gun" Sheriffs

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

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.

NRA'S REBUTTAL

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.

RIVERSIDE

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.

SAN BERNARDINO

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 CHALLENGE

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.

SAN FRANCISCO - Earlier today, the Ninth Circuit Court of Appeals granted a motion to prioritize the Second Amendment lawsuit Silvester v. Harris, a challenge to California's 10-day waiting period laws.
The motion was filed by Donald Kilmer, an attorney for the plaintiffs-appellees that include Jeff Silvester, Brandon Combs, The Calguns Foundation, and the Second Amendment Foundation.
In the motion, Kilmer argued that "Good cause exists to expedite oral argument in this matter" because:

1. The current stay prevents enforcement of the trial court’s injunction which is prejudicial to Plaintiff-Appellees.
2. The current stay prevents enforcement of the trial court’s injunction so there is no prejudice to the Defendant-Appellants.
3. The trial court's judgment awarded injunctive relief to protect the constitutional rights of the prevailing plaintiffs. Further delay in this case results in the ongoing enforcement of an unconstitutional law against Plaintiffs-Appellees, as well as all other persons similarly situated throughout the State. This meets the statutory requirements of 28 U.S.C. § 1657 and Circuit Rule 34-3.
4. All principal briefs and amicus briefs have been filed.

The Court's decision to grant Silvester priority status means that the case "will receive hearing or submission priority" like the other priority civil cases under Circuit Rule 34-3.
CGF Chairman Gene Hoffman said, "Law-abiding Californians and members of the foundations are having their rights infringed by having to wait 10 days to buy a gun. It's never prejudicial to the State to follow the Constitution."
Responding to the development, Kilmer said, "I'm pleased and encouraged that the Ninth Circuit granted the opportunity to prioritize the hearing in this important Second Amendment constitutional case. We look forward to successfully concluding this litigation as soon as possible."
Gun owners who wish to support the case can make a tax-deductible donation to The Calguns Foundation.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

Attorneys for four California gun dealers filed an opening brief on Monday that asks the Ninth Circuit Court of Appeals to strike down a law that, they argue, is unconstitutional and violates their First Amendment speech rights.

The appeal follows a federal District Court judge’s ruling in July that allowed the restriction to temporarily stand while the case progresses further, even though, the Court held, California’s ban on handgun-related speech by licensed gun dealers likely infringes on their First Amendment speech rights, is probably unconstitutional, and likely doesn’t materially reduce crime.

The dealers’ lawsuit was filed last November after the State Department of Justice cited Tracy Rifle and Pistol, a firearm retailer and shooting range in San Joaquin County, for having building signs visible from the outside that include images of handguns. An adjacent window sign at Tracy Rifle, which shows a photograph of an AR-15 style rifle, was not cited by the DOJ. Under the challenged law, Tracy Rifle and other plaintiffs could lose their firearm dealer license if the signs are not removed. Through the lawsuit, they hope to keep their signs up--and their First Amendment right to display truthful information about the handguns they sell.

The gun dealers argue that California Penal Code section 26820—first enacted in 1923—prevents them from displaying any “handgun or imitation handgun, or [a] placard advertising the sale or other transfer thereof” anywhere that can be seen outside their stores and “unconstitutionally prevents firearms dealers from advertising even the most basic commercial information—‘Handguns for Sale’—at their places of business.”

While California Attorney General Kamala Harris, a defendant in the case, had argued that the law was useful in preventing handgun-related crime, the District Court held that “there is not adequate evidence produced by the Government showing how, specifically, limiting impulse buys from passersby helps to manage handgun crime and violence….the Government has not shown that the ban is narrowly tailored to achieve the desired objective of managing handgun crime and violence.”

The firearm dealers are represented by attorneys Bradley Benbrook and Stephen Duvernay of Benbrook Law Group, and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.

“I run one of the most heavily regulated and inspected businesses in existence, but it’s still illegal for me to show customers that I sell handguns until after they walk in the door,” explained Michael Baryla, the owner of Tracy Rifle and Pistol, in a November 10, 2014 statement. “That’s about as silly a law as you could imagine, even here in California.”

Attorney General Harris is expected to file her answering brief on September 21.

Case filings for Tracy Rifle v. Attorney General Kamala Harris can be viewed or downloaded at calgunsfoundation.org/litigation/trap-v-harris.

The lawsuit is supported by CAL-FFL, California’s firearm industry association, as well as Second Amendment rights groups The Calguns Foundation and Second Amendment Foundation.

July 16, 2015 (SACRAMENTO, CA) – The State of California’s ban on handgun-related speech by licensed gun dealers likely violates their First Amendment speech rights, held a federal judge in Sacramento earlier this morning. The order, issued by District Court Judge Troy L. Nunley, found that the ban is probably unconstitutional, likely doesn’t materially reduce crime, and likely irreparably harms plaintiffs’ First Amendment right to express themselves the way they wish to.  Nonetheless, the judge allowed the restriction to temporarily stand, while the case progresses further.
The gun dealers argued that California Penal Code section 26820—first enacted in 1923—prevents them from displaying any “handgun or imitation handgun, or [a] placard advertising the sale or other transfer thereof” anywhere that can be seen outside their stores and “unconstitutionally prevents firearms dealers from advertising even the most basic commercial information—‘Handguns for Sale’—at their places of business.”
In today’s order, Judge Nunley said that the State “does not meet its burden of showing that the Central Hudson elements, in tandem with the additional First Amendment principles discussed above, are met. Therefore, Plaintiffs raise serious questions going to the merits of their First Amendment challenge to section 26820.
“On balance – based on the arguments and evidence currently before the Court – the Court also finds it is more likely than not that Plaintiffs will succeed on the merits of their First Amendment claim.”
While California Attorney General Kamala Harris had argued that the law was useful in preventing handgun-related crime, the Court held that “there is not adequate evidence produced by the Government showing how, specifically, limiting impulse buys from passersby helps to manage handgun crime and violence….the Government has not shown that the ban is narrowly tailored to achieve the desired objective of managing handgun crime and violence.”
Drawing an inference that most prospective gun store customers would believe the dealers sell handguns in addition to other types of firearms, the Court said that common-sense understanding “perhaps shows the pointlessness of section 26820.”
In spite of the fact that the firearm dealer plaintiffs showed a “likelihood of irreparable harm” to their First Amendment rights, and Judge Nunley’s finding that Harris failed to show how the law actually advanced public safety, the Court said that the public interest is best served by allowing the California Department of Justice to continue enforcing the challenged law during the course of the lawsuit.
“Granting the injunction would alter the status quo by requiring California to alter its regulatory scheme and practices as they pertain to firearms. Therefore, the Court takes the requisite caution in deciding against altering the status quo. With due consideration to the free speech considerations raised by Plaintiffs, which are also of public interest, a cautionary approach that favors denial greater serves the public interest than granting the injunction.”
The gun dealers noted that judge’s arguments for a “cautionary approach” in denying the preliminary injunction are undermined by his conclusion that the law likely isn’t really reducing crime.
In response to today’s ruling, California Association of Federal Firearm Licensees (CAL-FFL) President Brandon Combs said that the firearm dealers are reviewing the decision and considering their options.
“While we are pleased that Judge Nunley agrees with us on the law’s likely unconstitutionality, it’s disappointing that he would allow the State of California to continue enforcing it during the balance of litigation.
“If this were a speech case about abortion providers rather than gun dealers, I doubt very seriously that the Court would have allowed the law to stand while it was being litigated. For that matter, it’s hard to imagine that Attorney General Harris would have bothered defending it.
“We look forward to the plaintiffs’ next steps and will continue to support the case until the law is overturned and our dealers’ First Amendment rights are restored.”
Today’s order in Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. and other case documents can be viewed at calgunsfoundation.org/litigation/trap-v-harris.
The lawsuit is supported by CAL-FFL, California’s firearm industry association, as well as Second Amendment rights groups The Calguns Foundation and Second Amendment Foundation.
California Association of Federal Firearm Licensees (CAL-FFL) (www.calffl.org) is California’s most tenacious advocacy group for Second Amendment and related economic rights. CAL-FFL members include firearm dealers, training professionals, shooting ranges, collectors, gun owners, and others who participate in the firearms ecosystem.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.
The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

This is the fourth in a multi-part series on CGF’s Silvester v. Harris federal Second Amendment lawsuit, an action that challenges the 10-day waiting period laws (“WPL”) as unconstitutional (as applied).
AMICI CURIAE IN SUPPORT OF PLAINTIFFS/RESPONDENTS JEFF SILVESTER, BRANDON COMBS, THE CALGUNS FOUNDATION, AND SECOND AMENDMENT FOUNDATION
The amici curiae supporting Kamala Harris’ bid to overturn the lower court ruling have had their chance to weigh in, which we covered in Part 2 of this series.
Here, we discuss the pro-Second Amendment amici in support of Jeff Silvester and the other Plaintiffs/Respondents. Two notable and informative amici briefs were filed in support of upholding the District Court’s ruling:

1. A brief on the law and history by California Rifle and Pistol Association and Gun Owners of California (brief by attorneys C.D. Michel, Clinton Monfort, and Anna Barvir of Michel & Associates, P.C.); and,


2. A brief on empirical evidence and the opposing amici’s erroneous citation to various studies by Crime Prevention Research Center (brief by CRPC’s Dr. John Lott and attorney George Lee of Seiler, Epstein, Ziegler, and Applegate).

We are grateful for these amici organizations’ powerful briefs and sincerely appreciate their respective counsels’ excellent work. If you want to thank them for their efforts, please consider joining or donating to CRPA, GOC, and CPRC.
CRPA/GOC BRIEF: THERE IS NO CONSTITUTIONAL EXEMPTION FOR “LONGSTANDING” REGULATIONS, NOR ARE THE WPL “NARROWLY TAILORED” ENOUGH TO SURVIVE SCRUTINY
The California Rifle & Pistol Association and Gun Owners of California brief brought additional constitutional perspective to the table, reinforcing Plaintiffs/Respondents arguments that there is no broad constitutional exemption for “longstanding” regulations and that the WPL are not “narrowly tailored” enough to survive appropriate constitutional scrutiny. As the CRPA/GOC amici explain:

[C]ourts have regularly refused to shield laws from constitutional scrutiny absent evidence that the restrictions would have been understood to fall outside the scope of the Second Amendment at the time of the founding and ratification—even if those restrictions could arguably be shoe-horned into one of the “presumptively lawful” categories or if a handful of analogues have been enacted in some jurisdictions since that time period.

Heller’s discussion of examples of certain “presumptively lawful” regulations was not exhaustive, nor did it create unchallenged “safe harbors” for those regulations:

[T]he Supreme Court explained that laws regulating the commercial sale of firearms are ‘presumptively lawful,’ but “it did not purport to exempt” all such laws from constitutional scrutiny outright.

For these WPL regulations to survive constitutional scrutiny, they must be “narrowly tailored” to meet the government’s “compelling interest.” Forcing gun owners to submit to multiple waiting periods does not meet this standard:

While narrow tailoring under intermediate scrutiny need not be the “least restrictive means” of accomplishing its stated objective, the government still bears the burden of establishing that the law is “closely drawn to avoid unnecessary abridgment” of constitutional rights.
* * *Because the waiting period law is not likely to advance its interests as applied to gun owners who have passed a background check, and because the state has not demonstrated that the law does not burden substantially more conduct than necessary to achieve its interests, the district court did not commit reversible error in declaring this requirement invalid under intermediate scrutiny.

CPRC: NO DATA SUPPORTS ATTORNEY GENERAL HARRIS’ SPECULATIONS ABOUT THE WPL, BUT DATA DOES SUPPORT THE COURT’S CONCLUSIONS ABOUT CCW LICENSEES
The Crime Prevention Research Center’s brief focuses on hard statistical data and critical analysis of statistical claims made by Kamala Harris and her supporting amici.  Upon extensive review, CPRC found that Harris essentially has it backwards: there is no empirical data to support her assertions regarding the alleged positive effects of the WPL on current gun owners:

Even if there were to be a “cooling off effect,” as claimed, to deter crimes of passion (a colorful proposition for which there is no empirical evidence), Appellant and its supporting amici ignore that waiting periods also clearly prevent people who are being threatened from quickly obtaining a gun for self defense. If both effects likely occur, the question is which effect is greater. This is an empirical question, and the research generally finds no significant evidence of the impact of waiting periods on crime.

On the other hand, Harris’ assertion that there is no evidence CCW licensees are particularly law-abiding as a group is contradicted by all available data:

In sum, Appellant’s suggestion that CCW permit holders are equally as likely to be “violently impulsive,” or engage in straw purchases, as other members of the general public, is simply not a supportable fact. To the contrary, CCW permit holders on the whole are extremely law-abiding, responsible gun owners. . .

CONCLUSION
Amici serve an important role in lawsuits when they offer information and arguments helpful to the Court in evaluating the law and facts at issue in contentious cases, like this one. As “friends of the court,” CRPA/GOC and CPRC provided valuable insights, legal analysis, and data that make a strong case for the Ninth Circuit to uphold Judge Ishii’s ruling that found the WPL to violate Second Amendment rights.
CRPA and GOC effectively rebutted Harris and her supporting amici’s mischaracterizations of  intermediate scrutiny standards and the “presumptively lawful” regulations mentioned in Heller.
CPRC’s empirical data and penetrating critique of the flawed studies (and mischaracterization of their conclusions) Harris and her supporting amici leverage to distract from the facts show that the public safety utility of the WPL does not fit with the constitutional standards for a restriction on a fundamental right.
Going forward: Attorney General Harris has requested and received an extension of time to file her Reply Brief, which is now due June 30, 2015. That brief will most likely be the last development in this case until oral arguments at the Ninth Circuit. Stay tuned for our analysis of her Reply in early July.
Part I: The State’s Opening Brief
Part II: The Amici in Support of California
Part III: The Plaintiffs/Appellees Fire Back in Defense of Your Second Amendment Gun Rights