CA: Orange County Sheriff sued over carry permits

A

Al Norris

Moderator Emeritus
This just in from CA:

September 13, 2012 – In response to continuing complaints from Orange County firearms owners and Second Amendment civil rights activists, attorneys for the National Rifle Association and the CRPA Foundation have filed a lawsuit against Orange County Sheriff Sandra Hutchens in U. S. District Court.

Orange County citizens should be able to exercise their fundamental right to bear arms, but they are precluded from doing so because they do not have what Sheriff Hutchens uniquely considers “good cause” for a license to carry a firearm in public.

The lawsuit seeks to compel her to issue those licenses, and asks the Court to enjoin Sheriff Hutchens from requiring license applicants to prove they have a special need, beyond the general need to defend themselves and their loved ones, for a license to carry before she will issue them one.

Just days after having filed the Complaint, plaintiffs filed a motion for preliminary injunction asking the Court to order Sheriff Hutchens to cease withholding permits. A copy of the Complaint and Motion for Preliminary Injunction is available here http://michellawyers.com/mckay-v-sheriff-hutchens/.

Calgunlaws.com News will keep everyone updated on the progress of this case. Subscribe to Calgunlaws.com e-bulletins to be kept informed.

SUPPORT THE NRA/ CRPAF LEGAL ACTION PROJECT

Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA “Local Ordinance Project” (LOP) - a statewide campaign to fight ill conceived local efforts at gun control and educate politicians about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. The NRA/CRPA LOP has had tremendous success in beating back most of these anti-self-defense proposals.

In addition to fighting local gun bans, for decades the NRA has been litigating dozens of cases in California courts to promote the right to self-defense and the Second Amendment. In the post Heller and McDonald legal environment, NRA and CRPA Foundation have formed the NRA/CRPA Foundation Legal Action Project (LAP), a joint venture to pro-actively strike down ill-conceived gun control laws and ordinances and advance the rights of firearms owners, specifically in California. Sometimes, success is more likely when LAP’s litigation efforts are kept low profile, so the details of every lawsuit are not always released. To see a partial list of the LAP’s recent accomplishments, or to contribute to the NRA or to the NRA / CRPAF LAP and support this and similar Second Amendment cases, visit www.nraila.com and www.crpafoundation.org. All donations made to the CRPA Foundation will directly support litigation efforts to advance the rights of California gun owners.
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In addition to the source at Michel & Associates, the case has been recapped. The Docket and associated filings are here: Docket

The lead attorneys are Carl (Chuck) Michel, Glenn McRoberts and Sean Brady (a member of TFL), all attorneys for Michel & Assoc. Filed on Sept. 5th in the the US District Court for the Central District of CA.

An amended complaint was filed on Sept. 7th. On Sept. 11th, a Motion for a Preliminary Injunction (MPI) was filed.

Due to fairly recent changes in CA law, most CA residents/citizens are prohibited from almost any form of carry, except by permit and such permit is a concealed carry permit.

This lawsuit is tailored to the CA requirement (and discretionary use by the permitting officials) of "good cause." The suit also advances the 1A concept of "prior restraint" as it applies to the 2A.
 
In CA we have variance in practice from Sacramento County, which accepts "self-defense" as good cause to liberal bastions such as Los Angeles City and County, which do their best to preclude people from even applying (unless you are part of the glitterati or poltical classes), much less issuing.

Hutchens I understood had revised her anti-attitude, learned while working for LASD Lee Baca, and was working hard to make the stony path of the law as practical as possible. I would have preferred another target, but not my case.

Banning open-carry in any form occured last year and removed the fig leaf. The Democrat Legislature and hoplophobes got what they wished for, and teed this up. Orange County abuts Los Angeles, and perhaps the savants there will get the message.

It will be a long ride, but sometime CA will have to go "shall-issue" in law.
 
Glad to see it filed in Federal District Court but will not help with the Ninth Circuit in the way. But might make it to the Supreme Court. Trial court ruling will have no impact. Thank God for good law firms doing what needs to be done.
 
HarrySchell said:
In CA we have variance in practice from Sacramento County, which accepts "self-defense" as good cause to liberal bastions such as Los Angeles City and County, which do their best to preclude people from even applying (unless you are part of the glitterati or poltical classes), much less issuing.
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Harry, you can thank the SAF/CGF and attorneys Donald Kilmer and Alan Gura for that. The case, Richards v. Prieto (was Sykes v. McGinness), settled with the then Sacto County Sheriff.

Hutchens I understood had revised her anti-attitude, learned while working for LASD Lee Baca, and was working hard to make the stony path of the law as practical as possible. I would have preferred another target, but not my case.
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Sheriff Hutchens only quit revoking the permits of the former sheriff. As it happens, she is refusing to re-issue any of his permits that come due. She is still an anti. Please read the 1st amended complaint.
 
Thanks for your comments, Al.

I retook the qualification course for a CA permit about 4 months ago and it was reported anecdotally that Hutchens had figured out being anti was not going to keep her in the job, so she was behaving much more like Riverside and San Bernardino counterparts in working with applicants to assist with issuing CCW's. A friend told me (and he should know) Riverside issues on 95% of applications.

I recall Hutchens' move to take back permits issued by Carona, immediately upon her hiring. A couple of years in the job had mellowed her, but maybe not so much. I did not know that none of those revoked had not been reissued.

The common thread appears to be "self-defense" as good cause. The Sacramento County Sheriff announced in 2010 he would accept "self-defense". Hutchens clearly hasn't, though she may be issuing on other bases.

In fact, living in Los Angeles County, I refrained from attempting to apply as I was told I had to have the Police Chief in my little town (which does its own [non] issuing) approve my good cause before I could apply. The tone very much was "please don't try this", in my discussion with the leading officer. He went so far as to mention that I needed "appropriate insurance", which is not a feature of the requirements at all. I bit on that one and he backed down hurriedly. The message was pretty clear.

This is consistent with Los Angeles PD policy for a number of years. Despite the fact they lost in court and were told to change policies/procedures, they have not and were sued last year for continuing the old routine. I am in the same boat as the plaintiffs in OC.

I have had a TX permit for 12 years (acquired when I lived there), and now have permits for some other states, so that I can carry in 35 of 50 states. CA has no reciprocity arrangements with any states, though some will honor a CA permit.

This will be an interesting case.

The current situation produces rankly different results for CA citizens in simiar situations, at the whim of a local authority. A zip code sort of CCW permits in LA County in 2006 showed clusters of permits in danger zones such as Beverly Hills, and nothing in safe places such as Compton. It has racist and classist outcomes, which apparently suit some people just fine.

Most rural CA counties are effectively shall-issue. LA County with far more people has issued far fewer CCW's than some rural counties alone, must less those urban counties adjacent to it. San Diego, Santa Barbara and areas around San Francisco similarly frown on armed citizens.

Things may get worse as the Legislature has passed a bill which allows LA County to make its own rules with regard to....BB guns, regardless of any CA State laws that might relate. I can only guess where this precedent will go next.

Our governor and AG are both very much in favor sharing the monopoly on carrying concealed between LEO's and criminals. The rest of us are just too scary to trust.
 
  • 09-05-2012 - Complaint Filed.
  • 09-07-2012 - First amended complaint filed.
  • 09-11-2012 - Motion for a Preliminary Injunction, filed.
  • 09-17-2012 - Ordered that the hearing for the MPI be held on Oct. 29, 2012.
  • 10-09-2012 - Defendants filed their opposition to the MPI.
  • 10-16-2012 - Plaintiffs filed their Reply to the opposition.
  • 10-25-2012 - Defendants answer to the amended complaint.
  • 10-29-2012 - At the hearing, Judge Selna denies the MPI.
  • 11-09-2012 - Plaintiffs file an appeal of the MPI with CA9 (#12-57049).
    • 11-29-2012 - Opening brief filed.
    • 12-06-2012 - Amici briefs filed for appellant: Congress of Racial Equality; Center for Constitutional Jurisprudence; International Law Enforcement Educators & Trainers Association; Gun Owners of California and the NRA Civil Rights Defense Fund.
    • 12-21-2012 - Granting extension to file reply until Jan. 18, 2013.

As you can see, quite a bit has happened with this case. The relevant documents at the district court are available at the Internet Archive, but the documents at the CA9 have yet to be downloaded. are at the Michel & Associates website listed in the OP.

I'll see what I can do to make those CA9 documents available.
 
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And Orange County Submits their answer. Appellants have until Feb. 3 to file a reply.

01/17/2013 33 Submitted (ECF) Answering Brief and supplemental excerpts of record in 1 volume(s) for review. Submitted by Appellees Sandra Hutchens and Orange County Sheriff Coroner Department. Date of service: 01/17/2013. [8478422] (EP)
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Seems I actually retrieved the file before my friends at Michel & Assoc.
 

Attachments

Wow. Legal brilliance on display.

Starting off with trying to defend "may issue" by citing cases that date to well before Heller determined that the RKBA is an individual right, and before McDonald stated that the RKBA is a "fundamental" right. (p. 18)

Good God! At the end of page 20, they explained EXACTLY why citizens SHOULD be allowed to carry!

There it is, on page 34

As discussed, infra, the Policy does not burden conduct falling within the core Second Amendment right because it does not implicate the right to possess and use handguns for self-defense in the home – the scope of the right articulated in Heller.
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And this, of course, totally misconstrues what Heller decided. Heller did not rule that the scope of the 2nd Amendment RKBA is limited to self defense in the home. Heller ruled that the 2nd Amendment RKBA is an individual right, not a collective right, and that the Washington DC law prohibiting the keeping of a function firearm in the home unlawfully frustrated that right.

With minds like these defending them, I think the county is on the road to defeat.
 
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Good work, OC. I am pleased with your defense, very much so.

If you lose big enough and decide to go to SCOTUS, this one will team nicely with the appeal from IL as questions, and your legal team should compliment Madigan's.
 
Reply

A reply was due on 2/3/13. Has there been any reaction to the review and when will information be published? For those of us not familiar with this process what can we expect to happen next?
 
he Appellees’ Brief was filed on Jan. 17th.

On Jan. 23rd, we had the Brief of Amicus Curiae Law Center to Prevent Gun Violence Supporting Sheriff Sandra Hutchens filing an amicus brief (the LCPGV is the new name of the LCAV). The very next day, we had the Brady's filing an amicus: Brief for Amici Curiae Brady Center to Prevent Gun Violence; Ron Davis and Lucia McBath, Parents of Jordan Davis; Major Cities Chiefs Association; and International Brotherhood of Police Officers In Support of Defendants-Appellees and In Support of Affirmance

Also on the 24th, the Appellants’ Motion for Extention of Time to File Reply Brief. On Jan. 29th, the unopposed motion was accepted. Reply brief now due on or before Mar. 7, 2013.
 
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It sounds like others have joined the Sherif. I am sure this was expected but how will this effect the case. This adds to the time. Will all that has happened in the last few months influence the case? Good question that may not be possible to answer.
Thanks for you work.

Bob
 
Those that have "joined" the OC Sheriff are the two most political (and litigious) anti-gun groups in the nation. For those that have been following these cases over the years, the names are immediately recognizable. Heck, we don't even read their briefs anymore. They say the same thing, over and over and over....
 
How is this case any different than the three other cases already pending before the Ninth that were argued 9 months ago? Same basic stuff, different sheriff, right?
 
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