Fooling The Court: Lawyers Misrepresent Public Carry Realities In Peruta Case

In 2014, a three judge panel of the Ninth Circuit Court of Appeals issued a monumental decision in the NRA supported case of Peruta v. County of San Diego, recognizing the Second Amendment protects the right of all law-abiding citizens to not just keep, but to bear arms in public. In doing so, the Court held that self-defense is sufficient “good cause” to be issued a license to carry a concealed firearm (a CCW), the only means by which a California resident can lawfully carry a firearm outside of the home.

The Peruta decision was such a great victory for Second Amendment rights that gun-prohibitionists recognized the threat it posed to their civilian disarmament agenda. They quickly mounted a last-minute effort to overturn the decision. Immediately after the decision was issued, California Attorney General Kamala Harris asked the Ninth Circuit for permission to intervene into the case, despite repeatedly declining invitations by the parties to do so at much earlier and more appropriate times. And even though the defendant in Peruta, the Sheriff of San Diego, conceded defeat, unfortunately, at least one judge nevertheless called for a rehearing of the case before an 11-judge “en banc” panel of the Ninth Circuit. Oral arguments for that rehearing were held on June 16, 2015. We are again awaiting for a decision to be issued by the Court, this time a final one that will likely be petitioned to the U.S. Supreme Court by whichever side loses.

With that decision’s release looming, I wanted to shed some light on why the Court should rule in Peruta’s favor based on the erroneous arguments of the opponents.

During oral arguments before the en banc panel, attorneys for both the California Department of Justice and Yolo County tried desperately to convince the Court to overturn the three-judge panel’s decision. Despite being forced to finally admit that the Second Amendment protects a right to bear arms in self-defense outside the home, to advance their agenda lawyers for both claimed that a CCW, what Peruta seeks, is not required to generally bear arms outside the home. They claimed that the restrictions on a CCW under existing laws only placed a “theoretical burden” on the right to carry, and that the “theoretical” burden was not “substantial” enough to be considered an unconstitutional infringement on the Second Amendment right of law-abiding Californians to bear arms.

Specifically, they argued that the unfettered discretion of a California Sheriff in determining whether a law-abiding citizen has sufficient “good cause” to lawfully carry a firearm is not a ban, but rather a mere “regulation.” This is because, they claimed, nothing prohibits individuals from openly carrying a loaded firearm on their private property, in their place of business, or in “unincorporated” areas of the county where it is not otherwise illegal to discharge a firearm. In other words, they represented to the Court that firearms can often be carried for self-defense without a CCW in many scenarios. But, anyone who understands the severe limits imposed by California law knows that is simply not the case.

The disingenuous arguments made by the attorney for Yolo County went even further. When asked by the Court if it was illegal to carry a firearm in public without a license from the Sheriff, the Yolo attorney claimed that:

“Only for walking up and down the public streets within city limits… your inability to carry is limited to less than 1% of the County.”

These remarks, as well as similar ones from counsel for the Department of Justice, are flat out false. The truth is that lawfully carrying a firearm in public is virtually impossible without a CCW except for in a few remote areas almost completely detached from public forums. What the government attorneys call a mere “regulation,” in practice, amounts to a total ban on the carrying of firearms in most “public places.”

Restrictions On Loaded Carry Within Incorporated Cities

First, the unlicensed carry of loaded firearms is generally prohibited while inside incorporated cities or counties in a public place or public street. Cal. Penal Code § 25850(a). This means law-abiding people cannot carry loaded firearms anywhere in a city, including in their vehicles, without a CCW, while in such public spaces. Cal. Penal Code § 26350(a)(1)(A). Even private property or business owners are not always legally permitted to carry a firearm on their private property. Imagine, for example, a grocery store owner in an incorporated area of Yolo County. State law permits them to “have” a loaded firearm on the premises, but prohibits them from “carrying” it in the aisles of their own store without a CCW, see generally People v Overturf, 64 Cal. App. 3d Supp. 1 (1976), let alone to and from their business.

This is because courts have deemed, with varying results, certain types of private property to be “public places,” despite being privately owned. The term “public place,” as applied to firearms, is undefined by California statutory law, leaving it up to the courts to determine what exactly qualifies as such on a case by case basis. The closest definition with respect to firearms is the one given for “imitation” firearms, which is any “area open to the public,” including streets sidewalks, and even privately owned businesses. Cal. Penal Code § 20170(b). Other sources and laws define the term differently. For example, Black’s Law Dictionary defines “public place” as “[a]ny location that the local, state, or national government maintains for the use of the public, such as a highway, park, or public building,” whereas California Government Code section 68055.1(a) defines the term as “any area that is used or held out for the use of the public.” As a result, courts have arrived at various conclusions, sometimes triggering the requirement that an individual possess a CCW prior to lawfully carrying a firearm in those privately owned areas.

Restrictions On Loaded Carry Within Unincorporated Areas

Even though a particular area of a county may be unincorporated, it is not always legal to openly carry a loaded firearm in such areas. Depending on the particular location, it may be illegal to discharge a firearm there, which California classifies as a “prohibited area.”

Cal. Penal Code § 17030. As discussed above, it is illegal to carry a loaded firearm in public areas of incorporated cities. But in addition to this restriction, it is also illegal to carry a loaded firearm in any prohibited area of an unincorporated area. Cal. Penal Code § 25850(a). The problem, however, is that many different laws determine whether a particular location is a “prohibited area” within the meaning of the California Penal Code. For example, the California Fish and Game Code prohibits the discharge of firearms “within 150 yards of any occupied dwelling house, residence, or other building or any barn or other outbuilding” related to it, without the prior permission of the owner or lawful possessor. Fish and Game Code § 3004(a). The California Penal Code also prohibits the discharge of firearms over all public roads and highways, meaning that even if you are in an unincorporated area, it may be illegal to carry a loaded firearm without a CCW while on a public road or highway. Cal. Penal Code § 374c; see also 51 Op. Atty. Gen. 197, 10-3-68 (stating that Penal Code section 374c makes every public road or highway a “prohibited area” as defined in Penal Code section 17030).

Local laws are even more restrictive and create even more “prohibited areas,” because it is often the case that counties generally prohibit the discharge of a firearm while on certain county property. In Yolo County, for example, the county from which the attorney claimed a CCW is generally not needed to lawfully carry in most places, much of the county is a “prohibited area” where it is illegal to carry. Even though there are areas in the county where it is legal to discharge a firearm, they are described in such a confusing and scientific manner that it makes it all but impossible for average law-abiding citizens to know with any amount of certainty where their boundaries lie. For example, the Yolo County Code describes such areas using language like “…southerly along the extension of the center line of County Road 103 to its intersection with the South Fork of Putah Creek; thence along the center line of the South Fork of Putah Creek and Putah Creek to its intersection with County Road 98….” Yolo County, CA Code of Ordinances, Chapter 10, Sections 5-10.01 through 5-10.06.

As you can see, nothing short of a civil engineering degree and a high skill level of map-reading will help individuals avoid any legal trouble while attempting to carry a firearm without a license in the unincorporated portions of Yolo County. Combined with the state law restrictions on where it is lawful to discharge (and thus carry) a firearm, there is precious little area in Yolo County where one can carry without a CCW.

Restrictions On Unloaded Open Carry

In addition to the laws prohibiting the loaded carry of firearms discussed above, it is also generally illegal to openly carry an unloaded firearm. Cal. Penal Code §§ 26350, 26400. The location restrictions discussed above for “public” and “prohibited” places are effectively the same for this restriction. So you do not even have the ability to exercise the watered down version of the right to bear arms by carrying a firearm that is unloaded and is carried openly.

Conclusion

In sum, it is generally impossible to carry a loaded firearm within a city without a CCW. According to the US Census, 207,590 people live in Yolo County as of 2014. Of these, 182,962 live in incorporated cities. So more than 88% of Yolo County residents live inside incorporated cities. The denial of a CCW license effectively prohibits those 88% from carrying firearms in public places at or near their residences. In other California counties with large metropolitan areas, the percentage is even higher. For example, 100% of residents who live in the City and County of San Francisco live in an incorporated city, Act April 19, 1856, St.1856, p. 145, making it impossible for any of those San Francisco residents to carry a loaded firearm outside of their homes without a CCW.

Despite this total prohibition, the Department of Justice and Yolo County attorneys tried to persuade the Court to believe that this regulatory scheme does not infringe those peoples’ Second Amendment right to bear arms. Between the ban in “prohibited areas” of the unincorporated parts of a county, and the ban in incorporated cities where almost all residents actually live, work, and shop, the so-called mere “regulation” touted by the California Department of Justice and Yolo County attorneys can be seen for about what it effectively is, a ban — not a “regulation.” These limitations on unlicensed carry result in an almost complete ban on the right to bear arms in public for the lawful purpose of self-defense where combined with a Sheriff who exercises absolute discretion to deny law-abiding citizens a CCW for a lack of “good cause” to do so.

This ban denies law-abiding citizens their Second Amendment right to bear arms, and the attorneys for Yolo and California know it. Yet they attempted to “hide-the-ball” from Ninth Circuit with deceitful arguments suggesting that substantially unrestricted public carry of a firearm is typically possible even without a CCW. Let’s hope the Court sees through this façade.