California Right To Carry (“Home of the only lawsuit seeking to restore Loaded Open Carry to California”) issued the following press release/blog post:
There doesn’t seem to be any love lost between the National Rifle Association and Alan Gura the attorney behind the 2008 US Supreme Court decision on the Second Amendment – District of Columbia v. Heller. When Alan Gura was plodding along en route to the Supreme Court, the National Rifle Association tried to derail his lawsuit (Heller) but failed. Today, Mr. Gura appears to be trying to return the favor. Now the lead attorney in the case of Richards v. Prieto for the Second Amendment Foundation, Mr. Gura is trying to get the NRA case, Peruta v. San Diego, declared moot and vacated . . .
The Peruta decision, decided in February but put on hold until the 9th Circuit decides whether or not to rehear the case, held that there is a right to carry a loaded firearm in public. Although the decision was limited to the Sheriff of San Diego County, as a published decision it could be used as a precedent against other County Sheriffs who refuse to accept self-defense as “good cause” for obtaining a license to carry a handgun concealed.
Mr. Gura’s case was decided in an unpublished memorandum based on the Peruta decision which is probably why Mr. Gura wants the Peruta decision vacated. An unpublished memorandum decision does not establish a precedent anywhere. As far as the courts are concerned, Mr. Gura’s case cannot be cited in support of any future lawsuit seeking to obtain concealed carry permits. I suspect this is important to lawyers. After all, what lawyer wants the other guy to get all of the ink?
Moreover, the disposition of the en banc appeal in Mr. Gura’s lawsuit has been deferred pending the resolution of the Peruta quagmire.
Mr. Gura fired a shot at the NRA when he wrote a brief to the 9th Circuit Court of Appeals arguing that “Even were Peruta vacated tomorrow, neither this Court (the 9th Circuit Court of Appeals) nor the state could do anything to keep [Sheriff] Gore from printing permits to all otherwise-qualified comers. The Peruta dispute is moot.”
Sheriff Gore had abandoned his appeal of the Peruta case and said that once the Peruta decision becomes final he will accept self-defense as “good cause” for issuing licenses to carry handguns concealed to San Diego residents. California Attorney General Kamala Harris has petitioned the Court of Appeals to take his place in the appeal.
On May 1st, the 9th Circuit Court of Appeals, quoting Mr. Gura’s statement from his brief, ordered San Diego Sheriff Gore to tell the court of any change in his policy regarding the issuance of licenses to carry handguns concealed (CCWs) that might render the current appeal moot. If so, the NRA lawyers risk not getting any money from the San Diego County Sheriff’s office.
A similar thing happened two years ago in a lawsuit against Alameda County’s ban on guns in gun shows (not a typo). In the 13th year of litigation, Alamdeda County discovered that its ban on guns in gun shows had an exception allowing for guns to be present during gun shows. As a result, the lawyer who had spent over 12 years litigating the case did not collect one red cent from the County of Alameda. Ironically, the attorney in that case (Nordyke v. King) is Mr. Gura’s co-counsel in the Richards v. Prieto appeal.
If Sheriff Gore says his current policy is to accept self-defense as “good cause” for issuing CCWs then it is likely, but not certain, that the Peruta decision will be declared moot and vacated. This will have the effect of eliminating the chances of the NRA, or Attorney General Harris, from appealing the decision to the US Supreme Court because there will be no decision to appeal. Mr. Gura will have successfully derailed the NRA lawsuit in favor of his lawsuit (Richards v. Prieto) in which there will eventually be a final, appealable decision to the Supreme Court.
There is one important procedural obstacle to this happening. Sheriff Gore’s current policy is to not accept self-defense as “good cause” for the issuance of CCWs until the Peruta decision is final.
If Sheriff Gore insists on waiting until the Peruta decision is final then the Peruta decision will not be vacated at this time. The en banc appeal will continue and the NRA will eventually have a case that can be appealed to the Supreme Court, right alongside Mr. Gura’s case.
There is one other fly in the ointment. I asked San Diego Sheriff Gore if he is going to issue concealed carry permits to non-residents? His PR person replied that he will not.
California law requires that one be a resident of the county in which the permit is issued in order to obtain a permit.
The lead plaintiff in the NRA case, Ed Peruta, is a resident of the State of Connecticut. That is where he lives and that is where he works. When Mr. Peruta visits California he lives out of an RV parked in an RV park on the coast or he lives out of his RV parked in his sister’s driveway.
Occasional visits in an RV does not make one a resident of a county.
Under current California law, even having a home in a county does not make one a resident unless most of his time is spent in that home.
Mr. Peruta, under California law, which Sheriff Gore says he is obligated to uphold, cannot be issued a concealed carry permit and not just because he is an out of state resident but because the Peruta decision itself said that it was not ruling on the constitutionality of any state law.
The Peruta court said the only thing it had decided was that there is a right to carry a loaded firearm in public, self-defense constitutes “good cause” for the issuance of a CCW and that Sheriff’s Gore policy of not accepting self-defense was a violation of the Second Amendment to the US Constitution.
The Court of Appeals gave Sheriff Gore until May 14th to comply with its order and file his response.
[h/t Jim]