10-43: Be Advised...
with Doug Wyllie, PoliceOne Editor in Chief
Watching the Peruta case? Watch the hands instead!
No matter where you stand on Heller, Peruta, or any other relevant ruling on the Second Amendment, it’s imperative that you be mentally, physically, emotionally, and spiritually ready for whatever you face on the streets
Last week at this time we were tinkering with the headline for the news article about the Ninth Circuit court’s 2-1 ruling in Peruta v. San Diego.
• Court gives Valentine’s Day gift to Calif. ‘gun lovers’
• Calif. concealed-carry rules tossed by 9th Circuit court
• Liberal 9th Circuit rejects concealed-carry restrictions
As is the case with just about all news pieces, there’s much more to the story than can be expressed in a snarky, ‘clicky’ headline. For our purposes on PoliceOne, there is the macro (potential Supreme Court case law affecting policies and procedures from coast to coast) and the micro (subsequent officer safety issues and the attendant tactics and training to ameliorate same). Let’s briefly examine both...
Background and Context
In case you’re unfamiliar with the Ninth Circuit’s decision in Peruta, the divided three-judge panel ruled that California’s requirement that CCW applicants show “good cause” to receive a concealed carry permit violated the Second Amendment.
This “good cause” tends to come in the form of a known, identifiable, individual threat — a person against whom the applicant has already filed a restraining order, for example. It is then up to the local Chief of Police or Sheriff to review each application and determine whether or not the “good cause” criteria has been met.
Edward Peruta — for whom this case, originally filed in 2009, has been named — was among several residents of San Diego who had allegedly been denied a CCW permit on the basis that no “good cause” existed.
In Peruta, the three-judge panel said such “good cause” requirements “were too strict and ran afoul of a 5-4 landmark U.S. Supreme Court ruling in 2008 that struck down a Washington, D.C., handgun ban and said law-abiding citizens are allowed to have handguns in their home for self-defense,” said the Associated Press article we posted last week.
That 2008 case is, of course, D.C. v. Heller, which provided that law-abiding citizens can keep handguns in the home for self-defense purposes.
As far as I can discern, Heller didn’t address whether that right extends outside the home.
The Peruta ruling did, saying, in part:
“[I]f self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego’s policy...
A law effecting a “destruction of the right” rather than merely burdening it is, after all, an infringement under any light….”
In its decision last week, the Ninth Circuit panel stated that the legislature may regulate what mode of carrying to permit — open or concealed — but it couldn’t make it impossible for the vast majority of Californians to bear arms.
A California Chief Explains
Chief Greg Suhr of the San Francisco Police Department told me today that although the CCW process in his jurisdiction — where the Ninth Circuit court is based, and the only place in the state of California which is simultaneously a City and a County — is long and laborious, it is not impossible.
“Because we’re such a process-driven town, the process by which [an applicant] gets a CCW — and I’ve issued CCWs — is deliberately deliberate. I review everything on a case-by-case basis,” Chief Suhr said.
Chief Suhr told me that while he has “no problem with people having guns” he wants to have the authority at the local level to “just make sure that we don’t give guns to the people that shouldn’t have guns.”
Suhr pointed out that in San Francisco there is a “psych piece” to the CCW application process that — along with other elements — is in place to ensure that permits are not granted to people incapable of handling the responsibility of carrying a gun.
“Our process is so deliberate that a lot of people just decide ‘Phoey!’,” Suhr said. “Did they really need it if they don’t go through the process? For most people — if they’re really worried about needing something for self-defense — there’s not process that they won’t go through to get it.”
In essence, the arduous nature of the application process itself is a screen to weed out individuals not committed to training and other ‘hoops’ through which they might be required to jump.
“I think in San Francisco we have a good process. It’s objective. It’s not arbitrary. It is long and laborious, but it’s not overwhelming — people have navigated it,” Suhr said.
What it Means: Micro and Macro
From an officer-safety perspective, absolutely nothing of consequence changes in the immediate aftermath of last week’s ruling.
Watch the hands.
Call for backup and back each other up.
Use good contact-and-cover tactics.
Conduct thorough suspect searches.
“I was in task forces for a long time,” Chief Suhr told me today, “and nothing will really get your blood pressure going better than when you’re searching some guy and you feel the distinct outline of a gun.”
Don’t be offended when your cover/backup officer conducts their own search. In fact, you should thank them for doing so (and thank them doubly if they find something you didn’t!).
Remember the plus-one rule.
And so on, and so on, etcetera, etcetera.
That being said, if Second Amendment matters are of interest to you (they most certainly are to me, and if my email inbox is any indication they are to 99 percent of cops), this really is a case to watch.
My friend and PoliceOne colleague Val Van Brocklin noted that the Peruta decision is likely to be reexamined by the Ninth Circuit en banc, and I agree with that assessment.
Two other possible “next steps” exist and merit mention. San Diego County Sheriff Bill Gore could let the ruling stand (leading to changes in CCW application policies for many California chiefs and sheriffs) or he could petition the U.S. Supreme Court to hear the case.
My bet is that those two options are not very likely to happen, and that an 11-member panel will be convened to review the three-judge panel’s decision (it is worth noting that 10 of the judges on such a panel would have been appointed by Presidents Clinton or Obama — only District Judge Jeffrey White was appointed by George W. Bush).
I believe that no matter the outcome of such a proceeding, this case is SCOTUS-bound, in part because the Peruta decision creates a divide between Circuit Court rulings (the Seventh and Ninth Circuits on one side, and the Second, Third, and Fourth Circuits on the other).
Van Brocklin summarized it well when she told said the Peruta ruling “says that the Second, Third and Fourths Circuits erred by relying on cases which Heller overruled because those cases say that the only purpose of the Second Amendment is for the militia. Heller held that the Second Amendment right includes personal self-defense, and need not be connected to militia service.”
I want to include one more passage from last week’s ruling in this analysis:
“[W]ith Heller on the books, the Second Amendment’s original meaning is now settled in at least two relevant respects. First, Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right. ...Second, the right is, and has always been, oriented to the end of self-defense ...Any contrary interpretation of the right, whether propounded in 1791 or just last week, is error.”
Everyone’s Entitled to My Opinion
When I began working at PoliceOne half a decade ago, I was told outright that “gun control is one of those issues you’re better off never touching.”
Writing on this topic is akin to starting a food fight in the company cafeteria, but the subject is important and cannot be ignored.
Some cops don’t like armed citizens, and they have their right to that opinion. I’m entitled to my opinion, too. Do legally-armed, well-trained CCW citizens help prevent crime? I happen to think they do.
Bottom line? No matter where you stand on Heller, Peruta, or any other relevant ruling on the Second Amendment, it’s imperative that you be mentally, physically, emotionally, and spiritually ready for whatever you face on the streets.
Stay safe my brothers and sisters.