Lawsuit Challenges Sheriffs’ Discretion in Issuing Gun Permits

March 11, 2011 - 7:29 AM

Sacramento, Calif. (AP) - The nationwide debate over liberalizing gun laws spilled into a federal courtroom in Sacramento on Thursday as gun-rights groups challenged how much discretion California's law enforcement officials have in issuing concealed weapons permits.

Gun-rights advocates argued that county sheriffs, who handle most such permits, must issue them to anyone who completes a training course and has no mental health problems or criminal background.

They are challenging a policy by Yolo County Sheriff Ed Prieto, who says applicants in his county northwest of Sacramento must prove they have a reason to carry a concealed weapon, such as a threat to their safety.

That gives Prieto arbitrary discretion over a fundamental right to bear arms guaranteed in the U.S. Constitution, said Alan Gura, an attorney from Alexandria, Va. Gura is representing gun rights groups in California and groups that have filed similar lawsuits in Maryland, Massachusetts and New York.

Prieto's attorney countered that California law allows the sheriff to set standards and he did so to avoid an arbitrary decision-making process.

The lawsuits come as many states are considering an expansion of concealed weapons permits, including allowing them on college campuses.

Prieto's policy goes beyond those set by most California sheriffs by requiring, for instance, that applicants have "good moral character" and submit three letters of reference.

His seven-page policy limits permits to people who have been victims of a violent crime, those who can document threats of violence, and business owners who carry large amounts of cash. He will not give permits to people who cannot prove they face a credible threat of violence.

Yolo County includes the liberal enclave of Davis, home to a University of California campus. But it also is dotted with conservative farm communities.

"These are arbitrary standards," Gura told U.S. District Court Judge Morrison England Jr.

In most counties, if a person asserts an interest in self-defense, they get a permit, "and everyone's happy," Gura said.

The Second Amendment Foundation, Calguns Foundation and three individuals sued Prieto in 2009, alleging his policy violates not only the Second Amendment, but First Amendment free speech rights and Fourteenth Amendment equal protection guarantees.

Sacramento attorney Serena Mercedes Sanders, representing Yolo County and Prieto, disagrees.

"Guns are not the same as speech," she said. "Shooting off one's mouth and shooting guns have very different consequences."

The recent spate of lawsuits filed in California and other states was triggered when the U.S. Supreme Court ruled that citizens have a right to own guns in their homes. Sanders and England said no court has ruled that the same right extends to carrying weapons outside the home, and England expressed skepticism that the same freedom should apply.

"Like most rights, the Second Amendment is not unlimited," the judge said.

"The words `keep' and `bear' are separate words," countered Gura. "'Keep' is what you do at home. 'Bear' is what you do in public."

England fit the Sacramento case into the national debate that arose after U.S. Rep. Gabrielle Giffords was shot in the head and six others were killed in Arizona during a political event in January.

"Had there been five concealed weapons there and everyone started pointing and everyone started shooting ... wouldn't that have created a more dangerous situation?" the judge asked rhetorically during the 30-minute hearing.

A federal judge in the Southern District of California in December ruled against gun-rights organizations in a San Diego County case. That lawsuit was brought by a different attorney who used different legal arguments.

Gura said there have been no decisions in the lawsuits he filed in other states, nor in a similar suit filed by another attorney in New Jersey.

England said he will consider Thursday's arguments before issuing a written ruling. The judge also disclosed that he has had a concealed weapons permit himself, issued by Sacramento County's sheriff about 10 years ago.

That will have no bearing on his ruling, England said: "This case will turn on the Constitution."