By Mark Norcross
When Sheriff William Gore of San Diego announced he would not seek further review of the Ninth Circuit’s three-judge Peruta decision, some believed that he had caved to pressure from our favorite special interest groups (Brady, MAIG, et al.). Conspiracy theorists among us thought he might have held back in order to avoid a possible review by the United States Supreme Court. A review that, given the currently-continued presence of the Heller/McDonald majority on the bench, could threaten the continued validity of all discretionary issue licensing systems throughout the country. And in particular, the may-issue concealed carry licensing schemes held as constitutional in the Second, Third and Fourth Circuit Courts of Appeals (that’s New York [Kachalsky], New Jersey [Drake]and Maryland [Woolard], respectively). But that turned out not to be the case . . .
Instead, the California the state Attorney General – along with members of the Civilian Disarmament Industrial Complex – has gone all-in to seek reversal of the decision. TTAG deconstructed Kamala Harris’ tardy attempt—after prior refusals—to intervene in the case and be permitted to seek en banc review. What is perhaps most remarkable about this sudden turn of events is that the AG had refused invitations to join in the briefing and argument in several of these cases. Indeed she’dd argued that the state was not a proper party because the Attorney General has no authority to direct the sheriffs’ exercise of discretion. Apparently the dissenting opinion, bemoaning the majority’s wholesale overturning of California’s carry law, has changed her mind.
But Ms. Harris is not alone. The Brady Campaign and the California Police Chiefs Association (along with the California Peace Officers Association) have joined in the fray. As a point of interest, the California Sheriffs Association, which had previously joined in amicus briefs in support of the may issue system, declined to participate in the most recent maneuver.
In order to be allowed to petition for en banc review, a requesting party must have “standing,” meaning a particular legal interest in the litigation. Generally this is satisfied simply by being a party to the case. But when an entity is a nonparty, a special showing of “injury” must be shown. To meet that requirement, the Brady Campaign contends that its members have suffered “a particularized harm”, specifically, “the increased risk of grave injury and fear of being subject to future gun violence because of the Court’s decision.”
They further claim to be acting on behalf of all of the residents of San Diego County who will also face such risks and suffer such fears, as there is no other party acting to protect these persons. This apparently proves that there was no collusion between the AG and Brady, as the AG claims to be acting on behalf of the people of the state of California, and filed before Brady got its brief in. The AG’s brief thusly undercuts the need for Brady to be allowed intervention.
In Brady’s own words, the crux of its argument is:
The disposition of this action threatens to create a practical impediment to Brady’s ability to protect its members’ interests. Appellee’s press release stated that “[s]hould the decision of the Ninth Circuit become final, the Sheriffs 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.” (Ex. B). In other words, the Sheriffs department will begin issuing CCW permits to people it does not believe have a good cause to carry a concealed weapon. The Brady members are powerless, on their own, to stop the Sheriffs department from issuing CCWs in such circumstances. Therefore, the Brady members’ interests in their safety, as described more fully in Sections I and II(B) supra, would be practically impeded by the disposition of this action.
In support of its motion, Brady filed a series of mostly identical declarations from its members. Two in particular stand out. One is filed by a former Marine, Jaqueline Lader who states that she and her husband (also a former Marine) were present at the Aurora theater at the time of the mass shooting there, a circumstance she describes in some detail. She further testifies that she specifically researched gun laws, and chose San Diego as a place to move because of its restrictive approach to the carrying of firearms.
Finally, repeating language found in each of the declarations, she says:
11. I am very worried about the implications of the recent decision by the U.S. Court of Appeals for the Ninth Circuit overturning San Diego’s policy on the concealed carry of weapons. This decision and the likely increase in the number of concealed, loaded firearms that will be present in public areas as a result increases my risk of once again personally experiencing gun violence.
12. I frequently visit parks and other public places in San Diego, such as beaches, health clubs, and grocery stores. This change in the law will change where and when I visit these places. I will no longer go to some places because of my fear for my personal safety from those who will now be permitted to carry loaded and concealed weapons due to the recent court decision.
13. I am highly concerned that with an increased number of concealed firearms in public, there will be an increase in altercations that escalate to gunfire in which my family either myself, my husband or my 7 year old daughter-will be harmed. I will be extremely reluctant to engage in public activities because there will be a greater likelihood that I will encounter a person carrying a concealed weapon.
14. I am afraid that I will be personally harmed by gun violence committed by a person with a concealed weapons permit as a result of the Court’s decision.
15. I am deeply concerned about the carrying of guns by untrained individuals, which will increase as a result of the Court’s decision. The resultant change in the law makes it much more likely that someone will carry a weapon without proper knowledge of safety procedures and commit an accidental shooting of which I am a victim.
16. Consequently, the Court’s decision reduces my opportunities to pursue recreational, aesthetic, and leisure activities in public places.
It would appear that Mrs. Lader is unaware of California’s 16-hour training requirement, San Diego’s shooting qualification requirement, or the fact that concealed weapons carriers are significantly less likely to commit violent crimes than regular citizens or even police officers.
The other declarations generally describe fears of increased incidents of road rage, fears of children having access to firearms because their parents will be more likely to possess firearms (?), fear of not knowing who has a gun, and the generalized fear that people around them might just have, well, guns. This was one of my favorites, signed by Ron Marcus, a board member of the San Diego Chapter of the Brady Campaign:
7. The Court’s decision also harms my rights of free speech and association. Approximately one year ago, our Chapter held a meeting in a local coffee shop. Another patron of the business overheard our discussion and informed the group that he disagreed with our position on gun violence prevention and was carrying a concealed firearm. We were startled that he told us that he had a concealed firearm, were unsure why he told us about that and stopped engaging with this person. The increased number of people carrying concealed weapons as a result of the Court’s decision increases the likelihood of intimidation by people who are carrying concealed weapons and can restrict my participation in the debate about gun violence prevention.
8. If the Ninth Circuit decision is reversed, I will feel significantly safer in all of my activities and will fully enjoy the public space in San Diego County.
Translation: he’s afraid of people who carry concealed firearms, firearms are “intimidating” and he’s afraid to engage in debate with gun owners because they’re scary. Ultimately, he feels his right to free speech is threatened by your right to bear arms. It’s not clear why he believes that he will feel “safer” if he decision is reversed, in that he has already had at least one (nonviolent) encounter with a concealed weapons carrier. OMG! There might be even more!
Brady’s en banc petition merits little discussion. It largely reiterates – as does AG Harris’ brief – the arguments of the dissenting opinion. Its first point, however, contends that the decision conflicts with US Supreme Court precedent, in particular, Heller. That decision was very clear, according to Brady, that the right to keep and bear arms is limited to the home. Remarkable. The remainder of the argument is that firearms are simply too dangerous and present too great a risk to be allowed out in public—a point repeated endlessly in each of the various cases addressing these issues.
As for the California Police Chiefs’ Association and California Peace Officers Association, they didn’t actually move to intervene, asking the court to “construe” its en banc request as such a motion. Here’s what the Police Chiefs had to say:
There are significant questions of exceptional importance at issue in this matter, which warrant rehearing en bane by this Court. Specifically, the Opinion determines that California’s requirement for a showing of”good cause” for the issuance of a permit to carry a concealed weapon in public violates the Second Amendment. This decision impairs the ability of Sheriffs and Police Chiefs throughout the entire State to implement California law in a manner specific to the needs of their particular region and jurisdiction. As CPCA and CPOA asserted in their amici curiae brief to the Court in this matter, the State of California is extremely diverse- both geographically and in terms of population density in varying regions. Therefore, the Legislature has purposefully and necessarily left the determination of “good cause” for the issuance of permits to carry concealed weapons to the discretion of Sheriffs and Police Chiefs. The needs of any particular jurisdiction, especially due to the density of a specific area’s population, is a matter which requires individualized determination, and such discretion is not inconsistent with the scope of the Second Amendment right at issue in this matter.
Restated, the Chiefs (and the Sheriffs, even though they didn’t join in the application) contend that they should have the right to decide who gets to exercise Second Amendment rights in their jurisdictions. No mention is made of the fact that Police Chiefs are allowed to issue CCWs only if the Sheriff of their county delegates that function to them. Nor is any mention made as to why CPOA has any interest in the outcome whatsoever—unless one assumes that his group is just generally opposed to the issuance of CCW licenses.
If you have some time on your hands and feel like torturing yourself with these voluminous pleadings, the Ninth Circuit Clerk, recognizing the great public interest in the case, has created a special web page where the briefs and motions are posted. Enjoy.