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Peruta v. Gore

January 14, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


This is a Section 1983 action, challenging the constitutionality of California's law governing the carrying of concealed weapons, both facially and as applied to Plaintiff. Currently before the Court is Defendant William Gore's ("Gore") Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Having considered the parties' arguments, and for the reasons set forth below, the Court DENIES the motion.


Plaintiff is a sixty year old United States citizen and a California resident, who "maintains several residences across the United States, including but not limited to a residence in San Diego County." (Compl. ¶ 17.) According to Plaintiff, he maintains a permanent mailing address in San Diego, "where he and his wife have a room in which they keep a wardrobe and other personal items." (Id.) Plaintiff and his wife have made their motor home their "permanent residence," and allegedly stay in San Diego for extended periods of time. (Id. ¶ 18.) For example, Plaintiff claims to have reserved space at Campland on the Bay, in San Diego, from November 15, 2008 through April 15, 2009. He had also reserved spaces at the same place from February 2007 through April 2007. Plaintiff is a founder, and sole stockholder, of American News and Information Services, Inc., which gathers and provides raw, breaking news video, photographs, and news tips to various mainstream media outlets. According to Plaintiff, both his work and his lifestyle choice often require him to travel to high crime areas as well as remote rural areas, sometimes carrying large sums of cash, valuables, and equipment.

By way of background, Plaintiff is a certified National Rifles Association ("N.R.A.") instructor with the authority to train and certify individuals in the N.R.A. Basic Pistol Safety Course. Plaintiff has a valid pistol permit issued by the State of Connecticut, and is recognized by the Department of Public Safety to teach the pistol course required to obtain a Connecticut Pistol Permit. In 1969, Plaintiff was assigned as a marine small arms instructor (rifle and pistol) at the U.S. Naval Academy. In 1970, Plaintiff successfully completed the Connecticut Municipal Training Course. From 1969 to 1971, Plaintiff was a law enforcement officer in the State of Connecticut.

The present case arises from Plaintiff's attempts to obtain a concealed weapon's permit in San Diego County. Plaintiff alleges that he obtained and provided to the San Diego County Sheriff the required 8 Hour Firearms Safety and Proficiency Certificate in accordance with California Penal Code § 12050(E)(i). He also alleges that the Firearms Licensing and Permits Unit of the State of California Department of Justice found him eligible to possess firearms. On November 17, 2008, Plaintiff requested a license to carry a concealed weapon from the San Diego County Sheriff's License Division ("SD License Division"), at which time he was interviewed by a licensing supervisor to determine whether he satisfied the licensing criteria. On February 3, 2009, Plaintiff submitted an application for a license to carry a concealed weapon. Plaintiff alleges he was denied a license to carry a concealed weapon by Defendant Gore's predecessor because the SD License Division made a finding that Plaintiff did not have good cause and was not a resident of San Diego--both of which are requirements under Section 12050.

Plaintiff filed his complaint on October 9, 2009, alleging three causes of action. First, Plaintiff argues Section 12050's requirements of (1) "good cause" beyond the interests of self-defense and (2) durational "residency" violate the Second and Fourteenth Amendments to the U.S. Constitution. Second, Plaintiff alleges that Defendants' subjective application of the "good cause" and "residency" requirements results in an unequal treatment of similarly situated individuals, and therefore violates the Eighth Amendment of the U.S. Constitution. Finally, Plaintiff argues the requirement that individuals reside full time in San Diego County before they can apply for a concealed weapon's permit violates Plaintiff's right to travel under the Fourteenth Amendment to the U.S. Constitution.

On November 12, 2009, Defendant Gore filed the current Motion to Dismiss. [Doc. No. 3]. Plaintiff filed a response on December 7, 2009, and Defendant Gore filed a reply on December 14, 2009. [Doc. Nos. 4, 5]. On December 17, 2009, having determined that the Court can proceed without oral argument, the Court vacated the hearing set for December 21, 2009. [Doc. No. 6].


A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. A complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.544, 570 (2007). The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory," or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Group v. Delta Dental Plan of California, 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (citation omitted).

Despite the deference, the court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949-50 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950.


The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Supreme Court's landmark decision in District of Columbia v. Heller, --- U.S. ---, 128 S.Ct. 2783 (2008), resolved some of the hotly debated issues with regard to the Second Amendment, but left many others lingering for future determination. In Heller, after an exhaustive analysis of the text of the Amendment and the founding-era sources of its original public meaning, the Supreme Court stated unequivocally that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation." 128 S.Ct. at 2797. However, like most rights, "the right secured by the Second Amendment is not unlimited." Id. at 2816. Thus, the Supreme Court also made it clear that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. For example, the Supreme Court noted that: the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 2816-17 (internal citations omitted). In a footnote immediately following, the Supreme Court explained: "We identify these presumptively lawful regulatory measures only as example; our list does not purport to be exhaustive." Id. at 2817 n.26.

In Heller, having concluded that the Second Amendment protects an individual right to "keep and bear arms," and noting that "the inherent right of self-defense has been central to the Second Amendment right," the Supreme Court turned to the challenged law before it.*fn1 Id. at 2817-18. Without deciding what level of scrutiny should be applied (except stating that it would have to be more than "rational basis"), the Supreme Court concluded that the District of Columbia's "absolute prohibition of handguns held and used for self-defense in the home" clearly violated the Second Amendment. Id. at 2817-22.*fn2

I. Right to Bear Arms

A. Parties' Arguments

Plaintiff's first cause of action alleges that Section 12050's requirements of (1) "good cause" beyond the interests of self-defense and (2) durational residency violate the Second and Fourteenth Amendments.*fn3 Defendant moves to dismiss this cause of action, arguing that the Supreme Court in Heller, 128 S.Ct. 2816-17, expressly stated that the right secured by the Second Amendment is not unlimited, and that it certainly does not prohibit states from regulating the carrying of concealed weapons. Defendant argues that, unlike possession of a gun for protection within a residence--which was the issue in Heller--carrying a concealed firearm presents a recognized "'threat to public order.'" (Def. MTD, at 3 (quoting People v. Hale, 43 Cal. App. 3d 353, 356 (1974).)*fn4

Plaintiff agrees that the constitutional right to "keep and bear arms" is not unlimited, and therefore concedes that some regulations are permissible under the Second Amendment. However, also relying on Heller, Plaintiff argues that at the center of the Second Amendment is an individual right "to possess and carry weapons in case of confrontation, self-defense, or other traditionally lawful purposes, unconnected with service in a militia." (Pl. Opp., at 3.) Thus, to be armed and ready in case of confrontation, Plaintiff argues the Second Amendment requires that a person be allowed to carry a weapon "that is immediately capable of being used for its intended purpose." (Id. at 4.) According to Plaintiff, by imposing the "good cause" requirement, Section 12050 violates the Second Amendment. In the alternative, Plaintiff argues the application of Section 12050's "good cause" and "residency" requirements violates the Second ...

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