A lawsuit was filed this week against California Attorney General Kamala Harris and L.A. County Sheriff James McDonnell in U.S. District Court for the Central District of California, Western Division.
The suit, Flanagan v. Harris, filed on behalf of four Californians with the help of the California Rifle and Pistol Association, asserts that a combination of state laws against open carry of firearms, combined with L.A. County's "state-sanctioned policy that denies law-abiding residents the license required under state law to carry a concealed firearm" violate their Second Amendment rights. The suit also asserts that the citizens' rights under the Equal Protection Clause are being violated because of "ongoing unequal treatment concerning the exercise of Plaintiffs' Second Amendment rights."
The legal and factual background, from the suit:
California…bars ordinary, law-abiding citizens from carrying a firearm for self-defense, regardless of whether the firearm is loaded or unloaded and regardless of whether the firearm is carried in an exposed or concealed manner, in all but extremely limited, remote areas—unless the individual has a license to carry a firearm ("Carry License") issued by the local sheriff or chief of police….
In populous counties like Los Angeles, state law only authorizes the issuance of concealed Carry Licenses, thus completely barring residents of Los Angeles County from openly carrying a firearm for self-defense.
California law affords sheriffs and police chiefs unfettered discretion to determine whether to issue a Carry License to law-abiding citizens seeking to exercise their fundamental rights to bear arms. Defendant [L.A. County Sheriff] McDonnell uses this authority to deny Carry Licenses to nearly all law-abiding adults by denying their applications or, in many cases, informing potential applicants that applying would be futile because they would not satisfy his restrictive "good cause" policy [which] requires that an applicant provide "convincing evidence of a clear and present danger" against the applicant or a family member. Accordingly, the vast majority of the population cannot satisfy this discretionary standard, and therefore cannot obtain a license to publicly carry a firearm.
The suit points out that a recent federal 9th Circuit Court of Appeals case, Peruta, upheld restrictions similar to Los Angeles' in San Diego County. In that case the court, ignoring the Heller and McDonald cases that established a core self-defense right inherent in the Second Amendment (but which did not, alas, directly address how it applies outside the home), "held only that the carrying of concealed firearms was not historically protected by the Second Amendment, while leaving for another day the question of whether the Second Amendment protects the carrying of firearms openly."
This new suit picks up the challenge Peruta laid down:
In light of that ruling, Plaintiffs ask this Court to hold those provisions of California law that prohibit them from openly carrying firearms unconstitutional. Plaintiffs nevertheless also challenge Defendants' restrictions that bar them from obtaining concealed Carry Licenses….
The plaintiffs, represented by gun-rights lawyer C.D. Michel:
seek declaratory relief confirming that (1) the Second Amendment protects the right to carry a firearm for self-defense in public and (2) Defendants' total denial of the exercise of that right violates the Second Amendment….Plaintiffs also seek a declaration that California laws prohibiting the open carriage of firearms violate the Second Amendment, or, alternatively, that Defendants' laws and policies that preclude law-abiding citizens from carrying a concealed firearm for self-defense are unconstitutional.
The suit treats it as obvious that the holding in Heller ought to protect at least some ability to carry a weapon outside the home. That however has been a point of controversy in lower courts so far, one the Supreme Court has not seen fit yet to resolve. Perhaps this case will end up pushing that project along.
As I wrote in my 2014 article on "Five Gun Rights Cases to Watch," there is a lot of conflict over the issue in the courts, pre-Peruta:
The petition [to the Supreme Court in Drake v. Jerejian, a case the Court chose not to hear] points out that the issue of carry permits is ripe for Supreme Court consideration; "the federal appellate courts, and state courts of last resort, are split on the question of whether the Second Amendment secures a right to carry handguns outside the home for self-defense. The Second, Fourth, Fifth, and Seventh Circuits, and the supreme courts of Illinois, Idaho, Oregon, and Georgia have held or assumed" that citizens do have that right; but both the Third Circuit in this case, and "the highest courts of Massachusetts, Maryland, and the District of Columbia" think that public carry can be far more circumscribed legally.
Peruta itself, as Damon Root explained, asserts that Heller for sure doesn't cover concealed carry. A dissenting judge in Peruta did state what the plaintiffs in this case believe: "the Defendant counties' limited licensing of the right to carry concealed firearms is tantamount to a total ban on the right of an ordinary citizen to carry a firearm in public for self-defense. Thus, Plaintiffs' Second Amendment rights have been violated. While states may choose between different manners of bearing arms for self-defense, the right must be accommodated."
The relief sought in this suit, in part:
A declaration that denying all manners of publicly carrying a firearm for self-defense to law-abiding citizens violates the Second Amendment…
A declaration that California Penal Code sections 25850, 26350, 26400, and 26150(b)(2) are unconstitutional facially and as applied to Plaintiffs insomuch as they preclude law-abiding citizens from openly carrying a firearm in public for self-defense…..
As an alternative to the relief in paragraphs 3-6 of this Prayer, Plaintiffs seek: A declaration that California Penal Code section 26150(a)(2)'s "good cause" criterion is unconstitutional facially and as applied to Plaintiffs and lawabiding citizens who seek a Carry License to exercise their constitutional right to carry a firearm for self-defense….A declaration that Defendant McDonnell's "good cause" policy under section 26150(a)(2), which rejects a general desire for self-defense as sufficient good cause for the issuance of a Carry License, is unconstitutional facially and as applied to Plaintiffs under the Second Amendment….
Details on the citizen plaintiffs:
• Michelle Flanagan, a realtor, who "has two licenses to carry a firearm issued by the states of Arizona and Utah. These licenses authorize her to carry a firearm in thirty-five states, but not in California." She used to have a carry license in California's Kern County. She was denied such a permit in L.A. County, despite her asserting that she had "good cause" to need one "because her job duties require her to enter vacant industrial buildings alone, where she encounters vagrant men who are often much larger than her.
• Samuel ("Thomas") Golden, "a Certified Carry License Instructor for California, Utah, and Florida. He is also one of the trainers qualified to teach the Carry License training course to individuals applying for a Carry License with the Los Angeles County Sheriff. He has trained at least 10,000 shooters at almost every level. Also denied a carry license for himself from L.A. County.
• Dominic Nardone, a 69-year-old Vietnam veteran, asserted a "good cause" of wanting to "defend himself and his family," denied by L.A. County Sheriff McDonnell because he "did not face a significant enough threat."
• Jacob Perkio, who wanted a carry license "for self-defense while hiking and camping with his wife in remote areas." Denied by L.A. County.
Past Reason reporting on California gun carrying policy from Steven Greenhut.
The Los Angeles Times's report on the suit. The California Rifle and Pistol Association's announcement of it.