Sunday, July 31, 2016

CA: Lawsuit Challenges Ban on School Carry on Equal Protection Grounds

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On August 8th a hearing is scheduled for the case of  Ulissies Garcia et al v Kamala D. Harris( Case 2:16-cv-02572-BRO-AFM ) . The case concerns bill SB 707, which bans people with concealed carry permits from carrying on school grounds, but allows certain retired government employees to do so.  The suit claims that the law violates the equal protection clause of the 14th amendment.

Here is the argument from The Firearm Policy Center in California:
FPF filed suit challenging SB 707, which divides law-abiding gun owners into two classes – and an upcoming hearing could have huge ramifications on the legislature’s ability to pass discriminatory anti-gun laws in the future.

SB 707 banned law-abiding, CCW-licensed individuals from carrying handguns for self-defense on “school grounds.” However, the law created an exemption some former government employees.

One man, Dr. Ulisses Garcia, was issued a license to carry in response to a threat of violence from a former patient. Since the passage of SB 707, Dr. Garcia is unable to lawfully carry his handgun when he attends his children’s school events or simply drops them off in the morning. But this law applies differently to people who have worked in different professions, and those people don’t have to make that choice.

Here is the provision of the Silveira v. Lockyer case. From the decision SILVEIRA v. LOCKYER(pdf):
C. The AWCA’s Provisions Regarding Off-Duty Police Officers Do Not Offend The Fourteenth Amendment; However, There Is No Rational Basis For the Retired Officer Exemption. Plaintiffs contend that the privileges that are afforded to off-duty and retired peace officers under the AWCA violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Specifically, they contend that the pertinent provisions afford benefits to off-duty and retired officers that are unavailable to the plaintiffs, and that there is no rational reason that they and other law-abiding citizens should be treated differently than off-duty and retired peace officers.53
For good or ill, the rational basis argument that has developed in the courts is absurdly simple to meet.  Generally stated, if the legislature can make a statement that sounds reasonable (it does not have to meet any proof that it *is* reasonable), the standard is met.  AG Kamala Harris exploits that interpretation of the rational basis standard. Kamala Harris' arguments are briefly summarized below.

There is no Second Amendment right to carry on School Grounds; 

Allowing retired peace officers to carry has a rational basis;

That the state can confer special privileges on retired police officers, because there is no comparable group to them;

That no equal protection applies, because of the above;

She argues that the plaintiffs have no standing because they are not arguing to be allowed to carry in schools, but only to prevent retired police officers from being allowed to carry.

The brief from the AG's office cites cases to make these arguments.

The judge in this case is Beverly Reid O'Connell.  She was appointed by President Barak Obama in 2013.  Some of President Obama's appointees have made surprising decisions that limit government power.

The hearing is scheduled for 8 August, at 1:30 p.m. in the US District Court for the Central District of California, Western Division (Los Angeles), in courtroom 14.

I would like to paint a rosy picture about the chances to overturn SB 707.  The odds are against it.  Inequality in the law for retired police officers exists across the nation.  It would be a large step to overturn it.  It is possible that this case will be heard instead of dismissed.  The odds are that it will be dismissed on August 8th.

Update: Judge O'Connell has dismissed the lawsuit.  The plaintiffs are appealing to the 9th Circuit.  From
Judge O’Connell’s August 5 order held that the plaintiffs and retied peace officers are “sufficiently similarly situated to establish an equal protection claim” under the Equal Protection Clause. But, the Court held, review of “the Retired Peace Officer Exemption does not trigger heightened Scrutiny” because the “only group the Act treats differently is retired peace officers based on their status as former law enforcements officers.”

The Court’s order said that “the government interest here is one of private protection and self-defense” for the retired government employees, and, “[t]herefore, allowing retired peace officers an exemption from the general ban of carrying concealed weapons on school property is rationally related to the legitimate state interest of ensuring their protection.”

In its conclusion, the Court found that the Plaintiffs’ claim that the Retired Peace Officer Exemption is unconstitutional under the Equal Protection Clause cannot be cured by amendment because so long as the government has an interest in protecting retired peace officers, it will survive rational basis scrutiny.”

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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Anonymous said...

Let us not loose focus. the issue is equal protection One citizen has no more right to self defense than any other citizen, occupation has nothing to do with it. equal protection is equal one persons right over that of any other citizen the suit does not request the cops loose their right to carry it just demands that anyone legally able to carry be allowed to carry. Kamala Harris very frequently twists the law in a way that loses sight of the basic issue. the senate bill is flawed legislation, it should be over turned. The US supreme court has ruled it is an individual right denying that right to one group is not equal protection. the issue is nullifying a flawed piece of legislation that denies equal protection to all. Since the supreme court ruled that it is not the duty of the police to protect. it leaves self protection up to the individual. A retire police officers life is no more valuable that any grand fathers life. the officer has the choice to carry or not the grand father should have the same right to choose. Kamala Harris is costing the state of California a lot of my with her escapades for ignoring the law and false interpretations of the law. she needs to be replaced.

Anonymous said...

"reasonable" is twofold. First, controllers want ALL gun issues kept to Fourth Amendment "case law" so the easiest approach to imposing "reasonable" is attained. Second, of the three "Scrutiny" levels, if they fail to keep it in fourth amendment territory, they can rest on the lowest Scrutiny level.

Here is the Court's fatal error. Six Simple words following an example OF the precedent in control based on a loooongggg history of the Doctrine of Selective incorporation - "The Second Amendment is no different." - Justice Antonin

What is the right to keep and bear "no different" from? The First Amendment! And what level of Scrutiny applies and controls throughout that body of case law? Oh yeah - STRICT (as in opposite end of the spectrum from "reasonable".

Remember, the enumeration of a right necessarily takes OUT of the hands of government- EVEN THE THIRD BRANCH- the POWER to decide whether or not a right is really worth insisting upon.

If the court plays "reasonable" here, it is DIRECTLY ignoring the SCOTUS crafted precedent setting power and the precedent set. When Massachusetts state supreme court tried to do something along those lines recently, it got a unanimous vote smackdown for doing so. Even Miss "nunchucks are not protected" Wise Latina had to choose between gubmint imposed gun control OR the authority of the judiciary ITSELF to hace SCOTUS craft the precedent (as opposed to the lower courts doing whatever they please). Heck, even Ginsburg had to deviate from gun control to protect the judiciary's ability to robe its kings.

"reasonable" loses on either level, and rightly so- because if it won, then there is no such thing as a right, ever, anywhere, for anyone, of any kind.

Anonymous said...

I see a problem with this, in two different ways. The first is that off-duty LEOs are still, effectively, "on call", if an emergency need arises. The second is that retired LEOs both come under the outdated rules of "may issue", vaguely similar to a general protection order against those who would seek vengeance against them; and also, that though retired, it doesn't mean they somehow lose their LEO training nor ability to respond. In effect, they are Inactive Reserve police officers.

But this all speaks on behalf of off duty and former LEOs to be armed in public.

So the 14th Amendment argument should not be used to disarm *them*, but to allow the rest of the public to be armed in circumstances *similar* to off duty and former LEOs.

In effect, stripping away the special "may issue" exemptions. This makes sense because it is recognized that "may issue" is inherently prejudicial, so must be replaced by "shall issue". Who you are should not give you a special right to a gun; but instead, who you are, based on legal disability, should only be used to deny you a gun. That is the legal disability of felons and the mentally ill.