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Ninth Circuit Court Blasts California Gun Controls

San Diego Sheriff William Gore

With the Second Amendment in its sights, the liberal Ninth Circuit Court granted law-abiding residents in the Wild West state of California with an emphatic victory for individual liberties by striking unconstitutional restrictions on the right to keep and bear arms.

To watch the San Diego 6 News TV segment:

The 127-page opinion, supported by an exhaustive study of the history and application of the Second Amendment, confirmed the rights of individuals to conceal carry weapons outside the home. The opinion, if it stands, guaranteed individual rights over the intrusion of the government. Some legal experts claim the case could potentially be referenced in numerous civil liberty rights’ cases having nothing to do with the U.S. Constitution’s Second Amendment.

Most folks didn’t give the Peruta vs. Gore case much hope in the Ninth Circuit, defenders, including lead plaintiff Edward Peruta, thought the case would take years and end up in the Supreme Court—both were wrong and the people of California can add their names to landmark gun rights’ cases like Heller and McDonald.

The crux of the Peruta case centered on the “shall issue” versus the “may issue” of Conceal Carry Weapon (CCW) permits that gave discretion to the state’s 58 County Sheriffs. Peruta argued he had been wrongfully declined a CCW permit, even though he has licenses to carry a concealed firearm in three other states. As such Peruta cleared background checks, presented letters of recommendations and provided all information required to obtain a CCW license.

The lawsuit against San Diego County was filed in October of 2009 after the Sheriff William Gore’s office repeatedly road-blocked Peruta’s CCW application. Peruta said the Sheriff's Department left him no other recourse.

James Chapin, the sole attorney presenting the county’s case at Peruta’s initial hearing told the district court that neither Supreme Court decisions in McDonald or Heller rulings provided a right to carry a firearm outside the home and went on to say that the decisions stated that the right to own a firearm is not unlimited.

He argued that this case could make it far too easy for unsavory elements to obtain CCW’s and use that right to commit more crime. “Good cause has to mean something,” Chapin said.

The Ninth Circuit Court disagreed.

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct. Nor may we relegate the bearing of arms to a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantee that we have help to be incorporated into the Due Process Clause,” according to the Ninth Circuit judges rule in the McDonald case.

The Ninth Circuit went on to say, “The district court erred in denying the applicant’s motion summary judgment on the Second Amendment claim because San Diego County’s ‘good cause’ permitting impermissibly infringes on the Second Amendment right to bear arms in a lawful self-defense. The case is reversed and remanded.”

After the ruling was announced the San Diego Sheriff’s Dept. said the Ninth Circuit defined the issue on appeal as “whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense. In so doing, the Ninth Circuit took an exhaustive look at the history of jurisprudence surrounding the Second Amendment, and more specifically what it means to ‘bear arms.’ It is clear, given the 2-1 split in this opinion, as well as the split among Federal Circuits across the Country, that there is no easy answer on which everyone will agree.”

During a 2009 interview with this reporter Peruta said, “Honesty, fairness and full disclosure during the CCW application process could save the county a great deal of time and yet to be determined tax dollars.”

Today, Mr. Peruta has a large grin on his face and explains why his victory is sweet. “The Ninth Circuit ruling confirms Sheriff Gore disrespected every honest, law abiding resident in San Diego County. The CCW application process was nothing more than a scheme and quid pro quo for supporters with deep pockets while non-supporters were left empty handed. I didn’t file this lawsuit for myself, but for my family and I simply couldn’t wait to provide that security, nor did I feel other families should have to wait when it comes to self defense.”

Furthermore Peruta said, the assumption by the county that they are simply limiting the lethality of violent crimes is absurd, “do they really think a legal firearm owner will head down and rob 7-11 after he/she passes through a costly and lengthy background check to secure their safety?”

Nevertheless San Diegians must sit tight for the 90-day grace period. There are a few scenarios that could send the case back to the courts. First, the court itself could vote to have the full 11-judge panel review the decision. Second the State Attorney General, Kamala Harris, hasn’t finished her review and will likely discuss the case with the Department of Justice’s office in DC.

However, pressuring the courts to review Peruta vs. Gore could have consequences, especially if the Supreme Court hears the case and rules ALL “may issue” laws in ALL states as unconstitutional.

Nontheless, there are a few things in the Peruta case left to settle, including the hefty legal bills. Sean Brady, attorney in the Peruta case, said it is likely that county taxpayers could be on the hook for at least $500,000.
While the 90-day delay may seem like another stalling tactic, last week the Sheriff’s Department in Orange County alerted residents it would follow the new CCW guidelines.

Last week San Diego's northern neighbor, Orange County Sheriff loosened requirements for residents obtaining a concealed-weapons permit in light of the recent federal appellate court Peruta decision that said many counties in California were overly restrictive in their CCW license process.

Local applicants will no longer be subject to extraordinary high standards to prove they need to protect themselves or their family. Previously, candidates were required to prove “good cause,” something that limited concealed firearms in Orange County to people who carried large sums of money, valuables, and/or who could prove an existing death threat.

“Bottom line is the sheriff is going to abide by the law,” said Lt. Jeff Hallock, a spokesman for O.C. Sheriff Sandra Hutchens.

Past firearm Supreme Court cases

For those who didn’t think gun rights enthusiasts were going to win in liberal California, two recent landmark gun cases proved otherwise. First the Heller case (decided by the Supreme Court in 2008) gave residents in a federal enclave the right to “keep and bear arms;” and the McDonald case (decided by the Supreme Court in June of last year) extended the Second Amendment to the states to ensured that citizens were allowed to “keep and bear arms” without the individual states placing burdensome restrictions on the Second Amendment provision to own a firearm.

The heart of the McDonald case centered around a citizens’ right to own a firearm even when their life is not faced with an imminent threat, but to have the ability to protect themselves if or when a threat occurs.
The judges in the McDonald/Heller cases ruled out the Sheriff’s burdensome “good cause” disclaimer where they proclaimed it is a fundamental human right for citizens to have means for immediate self-defense in the event of a confrontation.

The plaintiffs in the Peruta case contended that the Sheriff’s Department found favor with prominent wealthy elite residents as well as those who belong to the Honorary Deputy Sheriff’s Association, an organization that funds many praiseworthy projects and equipment purchases for the Sheriff Department which may not otherwise be available due to current budget constraints.

“Every resident, taxpayer and voter of San Diego County should be outraged that the Sheriff offers the right to bear arms for “SELF DEFENSE” to the prominent, wealthy and/or well connected while refusing the same right to the average everyday hard-working law abiding residents of San Diego County,” Peruta said.

While the county contends it grants the majority of the CCW applications it receives, what it didn’t tell the court is the Sheriff’s office initially and informally tells possible applicants, after a few minutes of office review, that they don’t qualify and if they continue forward they will lose any application funds paid and have a negative record on their Department of Justice file.

“The evidence obtained in the Federal Lawsuit clearly shows the San Diego County Sheriff’s Dept. has an established policy of separating its residents into two distinct groups, those that can and those that cannot carry firearms for self defense,” Peruta explained.

While it may be true that law enforcement responds to calls for assistance, most cops on the beat openly say they cannot always respond in time to prevent crimes from occurring. In the real world it is a hard argument to win. It’s like asking a criminal to wait a few minutes for law enforcement to arrive before they commit their crime or inflict their intended harm on the unarmed victim. Peruta said it just doesn’t work like that in the real world.

During the closing arguments of the Peruta case, Los Angeles County Attorney Chuck Michel further explained “the right of self defense doesn’t end at the threshold of your home.”

Michel left the court with two important facts. “There are currently 37/38 states that are currently “shall issue” states.” He also explained that states’ with fewer firearm restrictions saw reductions in violent crime rates. “Significant declines, because nobody wants to go duck hunting when five percent of the ducks can shoot back.”

San Diego Sheriff Gore Yields to Second Amendment and Gun Rights

The 127-page ruling kicked the case back to the District Court in San Diego where San Diego County Counsel, James Chapin decided not to appeal and Sheriff Gore told the County Board of Supervisors that he had no intention of seeking en banc (full court) review in the Peruta, v. County of San Diego.

"On Thursday February 13, 2014, the Ninth Circuit Court of Appeals issued an opinion in the case of Peruta, v. County of San Diego, concluding that the State of California's requirement of "good cause," in cases where an applicant petitions for a Conceal Carry Weapon permit for personal protection, impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.

In its opinion, the Ninth Circuit defined the issue on appeal as "whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense." In so doing, the Ninth Circuit took an exhaustive look at the Anglo-American history of jurisprudence surrounding the Second Amendment, and more specifically what it means to "bear arms." It is clear, given the 2-1 split in this opinion, as well as the split among Federal Circuits across the Country, that there is no easy answer on which everyone will agree.

The decision by the Ninth Circuit found that the Second Amendment requires states to permit some form of firearm carry for self-defense outside the home. Additionally, the Ninth Circuit went on to emphasize that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession '—or carriage—' of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

In a passive concurrence of the Peruta decision, San Diego Sheriff William Gore stated, "Since becoming Sheriff, I have always maintained that it is the legislature's responsibility to make the laws, and the judiciary's responsibility to interpret them and their constitutionality. Law enforcement's role is to uphold and enforce the law.

The legislature certainly has the power to amend California's firearm carry process, and the Ninth Circuit has the ability to bring its own motion to rehear the decision of the three-member panel en banc. However, while the court's decision clearly involves a question of exceptional importance, and conflicts with decisions of other United States Courts of Appeals, the opinion provides clear guidance in the context of issuing CCWs in California.

Therefore, I see no need for me to petition for a hearing or rehearing en banc in order to be able to carry out my duties as Sheriff of San Diego County. As a result, I have advised the Office of County Counsel that I will not seek such a hearing.

Should the decision of the Ninth Circuit become final, the Sheriff's Department will begin to issue CCW's in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense."

The backstory: The second amendment takes aim at Sheriff Gore

There are many reasons applicants can be denied the right to carry a hand gun, including prior brushes with the law, inconsistent legal records or lack of need, however in San Diego it appears subjective determinations by the Sheriff control - if they just don’t like you your conceal carry permit application it is stamped – DENIED.

It’s true California is a gun restrictive state and as such keeps a close eye on the state’s gun owners, however, San Diego takes exception to what constitutes residency in order to prevent gun owners from legally carrying their weapon. As a result, Edward Peruta filed a lawsuit against San Diego County and Sheriff William Gore – leveling some precedent-setting charges.

Peruta, a Connecticut native, owns homes in several states (including California), calls himself a liberal Democrat, is a firm believer in the Second Amendment, and finds it odd that he is having so many troubles in San Diego.

“I guess you could say my wife sums it up best, California seems to follow the ‘rules de jour,’” Peruta said.
His San Diego saga began when he and his wife decided to take their home on the road, a motor home that is. When the Peruta’s made the decision to travel across the country law enforcement officers encouraged him to carry a firearm for protection.

“It seemed plausible enough, we were traveling in a vehicle with only one exit, carrying quite a bit of cash and would pass through areas where cell phone coverage would be spotty,” Peruta explained. “So I naturally looked into what the process was for states around the country and put together a piecemeal gun owner application process in the states I owned homes. I wanted to make sure I was covered wherever I traveled.”

His logic garnered him three conceal carry permits in the states of Connecticut, Florida and Utah. In each state he went through the application process that included references and background checks. The smooth sailing for Peruta in other states would not meet with the same result in San Diego.

“I knew there was going to be trouble when I turned in my application at the San Diego Sheriff’s office and they denied me before they even took my application! I was stunned by their lack of candor,” Peruta explains.

According to the San Diego Sheriff’s records, it received Peruta’s application and he was interviewed by Donna Burns, a licensed supervisor on November 17, 2008. During the initial phase of the CCW application process Burns advised him he did not meet the criteria for a CCW license and was denied the ability to turn in an application.

“I wasn’t happy about the decision and returned in December to talk to Blanca Pelowitz, a manager, who concurred with her staff that I did not qualify to even hand in my application for processing,” he said.

At this point his journalistic instincs kicked-in and he insisted the Sheriff’s Department take his application, his references and required fees.

In paperwork obtained from Peruta, the San Diego Sheriff ‘s office had this to say. “Despite the fact Peruta was told he did not meet the criteria for a CCW license Peruta insisted this office accept his application. Peruta was advised that no monies would be refunded once his application was accepted.”

Houston we have a problem, collecting 100 percent of the fees and not refunding money is a violation of California Penal Code.

This is where the San Diego Sheriff Department ‘s process begins to unravel. The psychic abilities of the San Diego Sheriff’s office are amazing. Apparently it can predict which CCW applications will be approved and those that won’t without reading and checking completed CCW applications.

However, one of the main sticking points for San Diego Sheriff employees is the fact Peruta lives in his motor home at Campland on the Bay in San Diego, from November 15 to April 15 each year. The department balks at Peruta’s residence even though he has presented paperwork for the last two years, fulfilling the residency requirement the Sheriff Department claims is mandatory for a successful application.

The lawsuit Peruta filed tackled the residency issue San Diego claims as the leading indicator for denial of his CCW permit. The process the SD Sheriff’s office says it followed did not include contacting the plaintiff’s eight character references, including three law enforcement officers, disregarding the three states that have already issued CCW permits to Peruta and reviewing the “good cause” aspects in connection with the CCW submitted application.

Wording contained in the Second Amendment lawsuit confirmed Peruta provided all the required information necessary for a successful application. Mr. Peruta also submitted a completed and certified National Rifle Association (NRA) Basic Pistol Safety Course, an eight-hour Firearms Safety Proficiency Certificate, Good Cause and Durational Residency in San Diego - yet he was still denied the CCW permit.

San Diego Sheriff candidate, Jay LaSuer, who is running against Gore in the upcoming election, has stated many times that he supports the CCW “shall issue” stance. “If a person can pass a background check and is a law abiding citizen they ‘shall’ receive a CCW license,” LaSuer explains. “When you have a Sheriff like Gore who doesn’t understand the law, how can you expect him to apply it?”

The County and Sheriff’s Department had requested that Peruta's case be dismissed, however the Ninth Circuit validated Peruta’s claims and he stated he is prepared to continue to fight , if necessary. “I’ve discussed this with my attorney and we will take it to the Supreme Court if we need to,” he candidly said.

Looking down the road Peruta remains confident. “I never thought of anything but winning, and often think of the people who don’t know how to litigate or don’t have the personal funds or funding sources to solve their problems. I wasn’t looking for a legal fight with San Diego but couldn’t walk away given the facts and circumstances. I have the facts, knowledge, finances and legal resources to address this issue.”

What outcome does Peruta want as a result of the lawsuit? He hopes the staff of the San Diego Sheriff’s Department becomes educated, by court order or agreement, if need be, in how to read and implement provisions of the California Penal Code and make decisions based on the exact wording contained in the state law. He says it’s important for public employees, regardless of their public agency, to listen, and treat individuals with the respect they deserve.

The continued disconnect between ‘real America’ and ‘bureaucratic America’ creates an unnecessary barrier for Joe taxpayer the result often ends with a lawsuit. “I would like public employees to stop adding or using words which are not contained in the law when making decisions,” Peruta explains.

Looking to change the way the San Diego Sheriff’s office does business is priority number one for Peruta, but the fact that many California residents don’t understand the law as it is written means they rely on public officials to be faithful to the law during the application process.

“I believe that if this case is not settled and finds its way for whatever reason to a higher court, it has the potential to impact the right to bear arms across the country for countless law abiding individuals. I’d like to believe that this case will clarify and correct the current pattern of abuse which exists in the State of California regarding CCW licenses,” Peruta says.

For those looking to apply for a CCW

Members of the public wishing to obtain a CCW under the standards articulated by the Ninth Circuit should be aware that the decision has not yet become final. Federal court rules prescribe a period of time, which must elapse before the case is remanded to the District Court for further proceedings. Should the decision of the Ninth Circuit become final, the Sheriff's Department will begin issuing CCWs in situations where the applicant has met all other lawful qualifications and has requested a CCW for purposes of self-defense.

Additionally, those seeking a CCW are advised that the process for obtaining a CCW involves several steps. The application process includes a scheduled interview, payment of fees, as well as state and local background checks. Successful completion of a firearms course of training is also required. This process can take several months.

At a minimum, Peruta would like to be first among those in San Diego that can legally obtain and possess a government issued CCW permit after the Ninth Circuit ruling.

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