Draft pleading in a contemplated California CCW lawsuit...

[Frank Ettin]

Wait wait wait, hold on a second. You're trying to tell me that when Ward and Saenz decided, because it wasn't "enumerated rights" in the constitution in terms of "right to travel" (read the 9th amendment), they deserved protection, but the enumerated rights of the first 8 amendments were not? That doesn't make any sense.

I just reread the cases, and not the 9th Amendment nor any other of the first 10 Amendments is so much as mentioned. If I missed something, please point it out to me.

The Court in Ward expressly states reliance on the "privileges and immunities" clause of Article IV, Section 2 and on the power of Congress to regulate interstate commerce under Article I, Section 8.

Saenz was a fairly straight up 14th Amendment case. The Court found that the California statute in question violated the "privileges and immunities" clause of the 14th Amendment (Section 1).

 

[Henry Bowman]

with no version of the 2A in it's state constitution

But Jim is offering a novel argument that the Calif. state constitution self-incorporates the CONTUS.

What I was talking about was the idea of the California courts self incorporating the Second Amendment onto the California State government. That simply flat out is not going to happen.

Have any Calif. courts bound the state to any other of the Bill of Rights based on the statement in the state constitution? It didn't matter before (with respect to the 2A) because the presumption was that the 2A didn't protect any individual right.

You're trying to tell me that when Ward and Saenz decided, because it wasn't "enumerated rights" in the constitution in terms of "right to travel" (read the 9th amendment), they deserved protection, but the enumerated rights of the first 8 amendments were not? That doesn't make any sense.

No, it doesn't. But that doesn't change it.

 

[Jim March]

OK. I've had some time to think about this. What I'm pondering doing tomorrow is getting a $20 US postal money order, filling out a California CCW app through section 5 as stated in the form itself along with this letter below which fits into one page and mailing it all off to Imperial County:

---

August 19th 2008

Sheriff Raymond Loera
Imperial County Sheriff's Office
328 Applestill Rd.
El Centro, CA 92243

Sheriff Loera,

Please find attached my application for a California Concealed Weapons Permit (CCW).

As you can see, this application is unusual due to my address in Tucson Arizona. Your county is the closest geographically to me, and hence appears to be the appropriate issuing agency.

As you are no doubt aware, the US Supreme Court recently decided the case of DC v. Heller. It established that the Federal government protects a basic civil right to personal defense. While the Heller case was about gun ownership in the home, the court went out of their way to define the term “bear” in the 2nd Amendment as involving a personal right to self defense out of the home. Pay particular note to the definition of “bear arms” cited in the Heller case, linked by Justice Scalia to Justice Ginsburg's dissent in Muscarello v. United States, 524 U.S. 125 (1998). I would also recommend a detailed look at the cases found in footnote #9 of Heller and what they uniformly say.

At present, it is still an open question as to whether or not the 2nd Amendment is “incorporated” against the states: that is, does it form a limitation as to what a state can do to it's own citizenry, especially in a state such as California where there is no obvious “right to arms” clause in the state constitution?

However, there is a body of 14th Amendment-related case law that is uniformly clear on one aspect of the 14th Amendment: the “privileges and immunities” clause prevents a state from discriminating against visiting residents of other states in any area of basic civil rights recognized and protected at the Federal level. In the “post-Heller world”, those Federally protected rights include a right to bear arms.

The controlling case law is Ward v. Maryland 79 U. S. 418 (1870) with it's principles “re-invigorated” in Saenz v. Roe, 526 U.S. 489 (1999). Both cases are broadly similar and are based on the same ideas.

As you are likely aware, California provides a mechanism to obtain CCW for state residents (albeit with radically different standards between counties and even towns) yet provides no mechanism for access to such a permit for non-California residents. California doesn't recognize CCW permits issued by other states, such as mine from AZ. The Heller case, when combined with the Ward and Saenz standards for a state's behavior, renders this “cross border discrimination” in a basic civil right flatly unconstitutional.

You should also be aware that since we are now talking about a Federally protected civil right, the existing Federal standards on “arbitrary and capricious” application of administrative controls will apply to any legal challenge by someone whose rights are under Federal review due to the cross-jurisdictional nature of the matter (one state discriminating against a resident of another state).

I look forward to your response to my application.

Jim March (address, etc.)

---

Me again. This will tell us a lot about how they intend to respond to this type of challenge. It also puts the case (if such occurs) into Federal court somewhere in SoCal (near Imperial anyhow) which in turn is easier for me to get to than Sacto.

It will sure as heck settle the "standing" question.

 

[DMF]

. . . the CONTUS.

CONTUS? What's a CONTUS?

I know what the COTUS is, as in the Constitution of the United States, but I've never heard of a CONTUS.

 

[ilbob]

I think your idea to file for a CCW license and having it denied on the grounds that you are not a CA resident would at least give you some basis on which to file a complaint.

I think the chances are good that if you proceed with this on your own, you will lose, but not on the merits of the case. You will get tripped up by the legal technicalities and niceties that you are likely to miss. While the federal courts have tended to be give a fair amount of latitude to people in pro se proceedings, a complex matter like this that directly affects tens of millions of your fellow gun owners is not something that I would want to see handled in such a matter.

I think you have a fair chance of losing anyway, even with the best of legal talent on your side. The best result you are likely to get is the right to apply for a may issue license, on a similar basis as CA residents. Since sheriffs generally are prohibited by state law from issuing a license to someone who does not live in their county, the state would have to come up with some way to accommodate non-residents to comply with a court ruling. If the DC law changes after Heller are any indication, CA would just find a way to turn down everyone legally, say by making the LASD the issuing authority for non-residents.

 

[loneviking]

Actually, non-residents CAN get CCW's, but it's up to the Sheriff of the issuing county. That's why you don't find a statute for this.

Jim, don't send a letter with all of the legal reasoning. Just send in your app., include a copy of your AZ. CCW and a letter stating that you've had your CCW for x number of years; that you frequently travel to CA.; that you need a CCW for protection because you either carry large amounts of money, or you have rental properties in bad areas that you check, or some other legitimate reason; and that you are applying with Imperial county as this is the county closest to you.

You don't want a Fed. court dismissing your claim by saying that your claim wasn't really in 'good faith'...in other words, your application was only because you wanted to file a lawsuit (Fed. courts don't like this) vs. you actually wanted a CCW and your actions show that.

Here's something to think about, Jim--what if the county gives you a CA CCW? What then?

 

[everallm]

Here's something to think about, Jim--what if the county gives you a CA CCW? What then?

Case law, case, case law....

If he is denied, this can be used to demonstrate arbitrary denial under color of law.

If he gets it, it can be used to support anyone else who is denied a claim.

Win-Win

 

[ilbob]

Actually, non-residents CAN get CCW's, but it's up to the Sheriff of the issuing county. That's why you don't find a statute for this.

I think they can get one good for 90 days if they have business in the county, and it is only good in that county.

 

[leadcounsel]

I glanced at this and there are a lot of fundamental mistakes.

The others are right. This is WAY TOO IMPORTANT to handle pro se. You need to get an attorney and get a good attorney for a victory because the deck is stacked against you in California, even though the plain meaning of the Constitution, Heller, etc. are on pro-rights side.

The court will SCRUTINIZE your pleading! Any errors will be magnified to justify ruling against you.

 

[Frank Ettin]

[1] As others have said, this is important and complex, with many opportunities to make "bad law." It needs the support of an able lawyer.

[2] If this is treated as a "right to travel" or "privileges and immunities" issue, it really doesn't get us anywhere (as Henry pointed out in post #22).

What Ward and Saenz effectively stand for is that a State (for most purposes) can not distinguish between a resident and non-resident or between a new resident and a longer established resident. Ward involved a Maryland law that essentially charged traders who were not residents of Maryland a significantly higher fee for a required license than residents. Saenz involved a law under which new residents were entitled to lesser welfare benefits than person who had been residents for more than one year. What the courts in each case said was that the distinction between residents and non-residents, on one hand, and between residents and new residents on the other could not be sustained under the Constitutional requirement that all citizens be entitled to the same privileges and immunities (Article IV, Section 2 and 14th Amendment, Section 1). The "privilege" in Ward was the ability to conduct business with a license costing a certain amount. The "privilege" in Saenz was a certain amount of welfare benefits.

So even if a federal court in California sustained the "privileges and immunities" argument, what a non-resident gets is the ability to apply for a concealed weapons permit under a discretionary, may-issue system.

[3] So we still need incorporation to bring in Heller and the 2nd Amendment. And that could be best approach head on by a California resident attacking the grant of discretion to a government official with regard to the exercise of a Constitutionally enumerated right.

 

[Henry Bowman]

[3] So we still need incorporation to bring in Heller and the 2nd Amendment. And that could be best approach head on by a California resident attacking the grant of discretion to a government official with regard to the exercise of a Constitutionally enumerated right.

Though I really like your idea of using the self-incorporation clause in the Calif. state constitution. Not a big deal with respect to the 2A when it was believed by Calif. courts and the 9th Cir. to be a collective right only. Now, it must be re-examined. Lower courts are still likely to deny rights, but that's the process for getting a final answer from the top.

 

[Gray Peterson]

I glanced at this and there are a lot of fundamental mistakes.

As I said before with another person on this board, why don't you point out the mistakes and how to fix them?

Jim, the letter is generally OK but you run into two fundamental problems. First is the idea of CCW itself being a civil right. It is not in of itself. You need to point out the existence of PC12031 and PC626.9 to where a CCW is the only way to effectively carry in California as you are completely shut out of the process.

Second is that I would suggest that they forward it to their legal counsel. It would be a slim chance but perhaps their legal counsel might advise them to cut you the license.

 

[Frank Ettin]

FYI -- here's a link to an interesting article on the right to travel: http://caselaw.lp.findlaw.com/data/constitution/amendment14/33.html

 

[ilbob]

Second is that I would suggest that they forward it to their legal counsel. It would be a slim chance but perhaps their legal counsel might advise them to cut you the license.

Since CA law doesn't allow for this, wouldn't doing this tend to expose a sheriff who issued illegally to some kind of risk? It would be akin to issuing to a felon (although not as onerous).

 

[Gray Peterson]

So even if a federal court in California sustained the "privileges and immunities" argument, what a non-resident gets is the ability to apply for a concealed weapons permit under a discretionary, may-issue system.

Which gives one literally hundreds of choices to choose from, 58 sheriffs, plus hundreds of police departments that still issue licenses. Not all of California is uniformly arbitrary or capricious like San Fran or Los Angeles Counties. You have a bunch of "green counties" that issue for personal protection, such as San Bernadino, Kern, and a bunch of counties in Northern California. If they open up the permitting process to out of staters, they would have to issue for the same reasons as their own residents under the auspices of Ward due to treatment of residents and non-residents. Every law enforcement agency issuing licenses would be under an uncomfortable microscope in processing non-resident applications. However, the "green" sheriffs generally believe in personal protection and won't play games, besides they'd be rolling in the money.

You know, someone brought up the thing with Ward, in that the state of Maryland had higher fees for non-residents, and restricted the business activities of persons who had that license versus residents who could sell more things. Since California has a may-issue non-resident license for only 90 days, costs more money, and only valid within the county of issuance, it's definitely actionable under Ward, which I believe that Jim's draft pleading doesn't even touch on. It should if he wants a higher chance of it succeeding, he should probably include that.

 

[Gray Peterson]

Since CA law doesn't allow for this, wouldn't doing this tend to expose a sheriff who issued illegally to some kind of risk? It would be akin to issuing to a felon (although not as onerous).

No. Good example of this was with the Nebraska CCW law. The original CCW law, SB418, required the disclosure of social security numbers. The Nebraska State Police refused to follow this state law due to the existence of the federal privacy act of 1974, and did not require dragging the NSP into court to force them to issue licenses without asking for an SSN. They just complied with federal statute.

Unless there is a criminal statute which says that sheriffs who issue licenses in contravention to the state law (regardless of the federal constitutional or statutory issues), I don't see how they can "get in trouble".

 

[ilbob]

If they open up the permitting process to out of staters,

whats to say they will allow any sheriff to issue to out of staters? they might select a single sheriff's department, or even a state agency to do it.

 

[ilbob]

Since CA law doesn't allow for this, wouldn't doing this tend to expose a sheriff who issued illegally to some kind of risk? It would be akin to issuing to a felon (although not as onerous).

No. Good example of this was with the Nebraska CCW law. The original CCW law, SB418, required the disclosure of social security numbers. The Nebraska State Police refused to follow this state law due to the existence of the federal privacy act of 1974, and did not require dragging the NSP into court to force them to issue licenses without asking for an SSN. They just complied with federal statute.

Unless there is a criminal statute which says that sheriffs who issue licenses in contravention to the state law (regardless of the federal constitutional or statutory issues), I don't see how they can "get in trouble".

This is not even close to the same thing. The NE example is where there is a specific federal statute dealing with the issue. There is no federal statute dealing with issuance of CC permits. Local officials generally only have the powers delegated to them by state law. If the law does not permit them to do something (like issue to non-residents) they just have no power to do it. I suppose a court might order them to ignore the law, and issue to non-residents anyway, but more likely the courts would tell CA they need to deal with the problem and they would do something like what DC did.

 

[Frank Ettin]

Lonnie, while this could, just possibly, result in California officials having to process applications for non-residents, since under existing California law issuance of a permit is entirely withing the discretion of that official, and the application can be rejected for any, or no, reason, thye still don't have to issue any permits to non-residents. This is really the issue that needs to be dealt with, and it can only be properly dealt with on the basis of the 2nd Amendment. And for that we need incorporation.

In addition, under current California law, one may only apply in the county in which he lives (or under some circumstances, works), where would a non-resident apply? I don't think that, even, under the best possible result a court would let a non-resident apply in any county he chose (since a resident could not).

I believe that at least one state (shall issue) that issues non-resident permits has non-resident apply with the state police while residents apply in the county in which they live. If that's the sort of result we get in California, as long as it's a "may issue" system, I don't think we'll be seeing any non-resident permits any time soon.

 

[Jim March]

Lonnie Wilson pointed out in EMail that I *can* legally get a California CCW as a Tucson AZ resident via the 90-day employment-based CCW thing in PC12050 that nobody uses.

That gives us two things: statutory proof that the Cali legicritters figured they could do a background check on a non-resident (BIG point as we'll see) and that the financial costs to an out-of-stater are at minimum EIGHT TIMES HIGHER than the costs for an in-stater. Plus the out-of-state-available type permit is much harder to get - I don't likely do enough business to qualify. Plus the 90-day license is only good in one county where a "real" CCW (two years) is good Cali-wide.

SECOND:

Lonnie also points out a failed challenge very similar to mine in the 2nd Circuit in 2003 - Bach v. Pataki:

http://federalism.typepad.com/crime_federalism/2005/05/second_circuit_.html

The first thing the Bach court held was "collective right" - well that's shot to hell (pardon the pun) by Heller.

Second thing is that since the right being discriminated against (gun permit access) isn't "fundamental", it doesn't fall under the "privileges and immunities" protected under Ward v. Maryland, Saenz v. Roe and the like (yeah, Mr. Bach cited both). Yet again, in the post-Heller world this falls apart.

Third thing is that New York claims to have no way to check backgrounds or "good cause" of a Virginia resident. California's 90-day option for out-of-staters says that California can't use this claim: statutorily they're set up to do out-of-state permits.

Ohkay. That begs the question: should I apply for 90-day CCW in *Monterey* (or Santa Cruz, come to think) where I last did California business? Saying I "do business" in either would be a serious stretch, there's little ongoing activity. Better to apply for a two-year but then later use the availability of the 90-day thing against them in case they use Bach as a blueprint. (My "work history" in Monterey or Santa Cruz isn't enough for a 90-day permit and I wouldn't lie about that.)

Thoughts?

 

[Gray Peterson]

Wouldn't be applicable in their circumstance, but you have a substantial advantage of the Bach v. Pataki case.