A monumental February 14, 2014 ruling from the Ninth Circuit Court of Appeals in the NRA sponsored case of Peruta v. San Diego County found that the San Diego County Sheriff’s policy of refusing to issue licenses to carry firearms in public absent proof of a special need is unconstitutional. In response, some California counties, including Orange County, wisely changed their policies about issuing carry licenses from a restrictive “good cause” standard that few could meet, to one that accepts personal self-defense as sufficient “good cause.”
Before the Peruta decision came down, Orange County Sheriff Sandra Hutchens had issued just 940 licenses to carry and received only about 500 new applications per year. Her issuance policy was very similar to the one challenged in Peruta, requiringapplicants to show proof of specific threats, such as a police report or a protective order, to prove they were in immediate danger before she would issue them a license. In the year since the Peruta ruling and Sheriff Hutchen’s acceptance of an essentially “shall issue” standard, the sheriff’s department has been swamped with applications, with over 4,000 in just the first three months. The only change in Orange County from previous years was that “self-defense” was being accepted as “good-cause” for getting a license.
Back to the Future in the O.C.
In 2008, then-new Orange County Sheriff Hutchens instituted her original CCW issuance policy, which was far more restrictive than those that existed under her predecessors. In the process, she revoked many already issued licenses and caused a firestorm of protest. Hutchens was grilled by the Orange County Board of Supervisors, because they did not support her making it more difficult to get a carry license, and they were angered by Hutchens’ decision to revoke hundreds of licenses that she deemed lacked “good cause” after she redefined that term.
Back then, Sheriff Hutchens claimed that she was just “following the law” when she restricted the issuance of CCWs. But the lawyer advising her in 2008 was a biased gun control advocate who gave a legal opinion saying her discretion was limited that was contrary to both historical interpretation and statewide practice. NRA and CRPA attorneys explained why his legal position was wrong, and then worked with law enforcement officials and the lawyers for the sheriff’s association, who agreed. Nonetheless, Sheriff Hutchens stuck with her restrictive issuance policy–that is, until the Peruta decision came down.
But the recent order of the Ninth Circuit to rehear the Peruta case by an 11 judge “en banc” panel means the 2014 opinion is no longer binding. This has prompted Sheriff Hutchens to unnecessarily choose to revert back to her old policy.
Late on Friday of last week, Sheriff Hutchens released the following statement:
The Peruta v. County of San Diego panel decision has been withdrawn by a decision to rehear the case en banc in the Ninth Circuit Court of Appeals.
New applicants, and those applicants currently in process, will be required to articulate their safety concerns and provide supporting documentation in accordance with the Orange County Sheriff’s Department’s (OCSD) Policy 218. Each application will be evaluated individually based on the merits of the applicant’s good cause statement and the totality of their circumstances.
CCW Licenses issued under the previous Peruta standard of good cause are lawful and will not be recalled. Current licensees may be required to provide supplemental information and documentation in support of their good cause statement when they attempt to renew their CCW license. All renewal applications are subject to the legal standards at the time of renewal.
Prospective applicants are encouraged to attend their scheduled appointments and submit their CCW applications for consideration. Applications approved after Thursday, March 26, 2015, are subject to the good cause requirement in OCSD Policy 218.
While Sheriff Hutchens is not revoking anyone’s license yet, she is subjecting those who are currently in the application process to her sudden policy reversal. The problem with raising the bar this way, setting aside the issue of unconstitutionality, is that those applicants dedicated time and money believing that they would be treated properly by Sheriff Hutchens, only to have the game changed midway. To add insult to injury, most of these applicants have been waiting several months just to be able to get an interview for their application.
Still more egregious is that Sheriff Hutchens does not have to do this! She is not legally obligated to enforce a strict definition of “good cause” for a carry license. Any Sheriff can choose, as a policy matter, to accept the rationale of the Peruta decision voluntarily, even if they are not required to do so by the court. Sheriffs have the discretion to accept self-defense as “good cause” for a carry license and many California sheriffs do! For years, many California sheriffs have been affecting “shall-issue” regardless of the status of the Peruta case. What Hutchens is effectively saying is that restricting carry licenses is her policy preference!
Orange County residents should not stand for this! Orange County residents are encouraged to contact Sheriff Hutchens and respectfully tell her you do not support her choice to revert to a strict CCW policy. Call or submit a complaint today, and tell your friends and family to do the same.
Call the Public Affairs Office of the Sheriff: (714) 647-7042
Submit a complaint to the Sheriff here.
Also let the Orange County Board of Supervisors know that you oppose the Sheriff’s policy change here.
NRA Backed Litigation Against Sheriff Hutchens
Even before the Peruta decision was issued, and in response to continuing complaints from Orange County firearm owners and Second Amendment civil rights activists over Hutchen’s restrictive CCW policy, in September 2012, attorneys for the NRA filed a lawsuit in federal District Court challenging that policy. That case is McKay v. Hutchens. Like Peruta, the lawsuit seeks to compel Sheriff Hutchens to issue licenses for self-defense. That case was stayed pending final resolution of Peruta, and is still currently stayed. But if Peruta is upheld, the court in the McKay case will be bound by it.
Help Us Help You
Please help us fight for your right to choose to own a gun for sport, or to defend yourself and your family. CRPA and NRA work together in California to fight for you in Sacramento, in cities and counties across the state, in regulatory agencies, and in the courts. Even with the generous rates that our team of civil rights attorneys, legislative advocates, experts and consultants grant us, these ongoing efforts are still expensive. You can support our pro-Second Amendment efforts in California by donating to the California Rifle & Pistol Association Foundation (CRPAF). CRPAF is a 501(c)(3), so contributions to CRPAF are tax-deductible. Or donate to NRA Legal Action Project. All donations will be spent to specifically benefit California gun owners.
Second Amendment supporters should be careful about supporting litigation or other efforts promised by other individuals and groups that lack the experience, resources, skill, or legal talent to be successful. The NRA and CRPA national team of highly regarded civil rights attorneys, legislative advocates, and scholars has the experience, resources, skill and expertise needed to maximize the potential for victory in California’s often hostile political environments.
For a summary of some of the many actions the NRA and CRPA has taken on behalf of California gun owners, including the groundbreaking Peruta case, click here.
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