1 CARMEN A. TRUTANICH, City Attorney (SBN 86629x) GARY G. Chief Assistant City Attorney 2 CORY M. BREN IE Assistant City Attorney ELIZABETH MITCHELL, Deputy City Attorney (SBN 251139) 3 WENDY SHAPERO, Deputy City Attorney (SBN 198739) 200 North Main Street 46th Floor, City Hall East Los Angeles, CA 90012 5 Email: wendy.shaperolallacity.org Phone No.: e213} 978-7029 6 Fax No.: (213) 978-8785 7 Attorneys for Defendants CHARLIE BECK and LOS ANGELES POLICE DEPARTMENT CASE NO. CVI0-8377 RGK (JEM) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 JONATHANBIRDT, May 16,2011 9:00 a.m. 850 Date: Time: Courtroom: [Defendants' Response to Plaintiff's Sl1Jarate Statement of Undisputed Facts, Defendants' Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment, Declarations, Exhibits, and Proposed Order filed concurrently herewith] DEFENDANTS LOS ANGELES POLICE DEPARTMENT AND BECK'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Defendants. Plaintiff, v. 13 14 15 16 17 THE LOS ANGELES COUNTY SHERIFFS 18 DEPARTMENT, DOES I to 50, inclusive, 19 20 21 22 23 24 25 26 27 28 Case 2:10-cv-08377-JAK -JEM Document 56 Filed 04/18/11 Page 1 of 28 Page ID #:502
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1 CARMEN A. TRUTANICH, City Attorney (SBN 86629x)GARY G. GEUS~ ChiefAssistant City Attorney
2 CORY M. BREN IE Assistant City AttorneyELIZABETH MITCHELL, Deputy City Attorney (SBN 251139)
3 WENDY SHAPERO, Deputy City Attorney (SBN 198739)200 North Main Street
7 Attorneys for Defendants CHARLIE BECK and LOS ANGELES POLICEDEPARTMENT
CASE NO. CVI0-8377 RGK (JEM)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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12 JONATHANBIRDT,
May 16,20119:00 a.m.850
Date:Time:Courtroom:
[Defendants' Response toPlaintiff's Sl1Jarate Statement ofUndisputed Facts, Defendants'Statement of UncontrovertedFacts and Conclusions of Law inSupport of Motion for SummaryJudgment, Declarations, Exhibits,and Proposed Order filedconcurrently herewith]
DEFENDANTS LOS ANGELESPOLICE DEPARTMENT ANDBECK'S NOTICE OF MOTIONAND MOTION FOR SUMMARYJUDGMENT OR PARTIALSUMMARY JUDGMENT ANDOPPOSITION TO PLAINTIFF'SMOTION FOR SUMMARYJUDGMENT; MEMORANDUMOF POINTS ANDAUTHORITIES
Defendants.
Plaintiff,
v.
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17 x~~h1~~Ifc~~JtI~allij, ~~~THE LOS ANGELES COUNTY SHERIFFS
18 DEPARTMENT, DOES I to 50, inclusive,
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Case 2:10-cv-08377-JAK -JEM Document 56 Filed 04/18/11 Page 1 of 28 Page ID #:502
1 TO PLAINTIFF IN PRO PER:
2 NOTICE IS HEREBY GIVEN that on May 16,2011, at 9:00 a.m., in
3 Courtroom 850 before the Honorable Gary R. Klausner of the United States District
4 Court, located at the Edward R. Roybal Federal Building, 255 E. Temple Street, Los
5 Angeles, California 90012, Defendants Los Angeles Police Depatiment and Charlie
6 Beck will move this Court pursuant to Fed. R. Civ. P. 56(b) for summary judgment
7 on all claims in this matter and oppose Plaintiffs Motion for Summary Judgment.
8 The grounds and the reasons are set fOlih in this Memorandum of Points and
9 Authorities. The Memorandum also serves as Defendants' Opposition to Plaintiffs
10 Motion for Summary Judgment. A Separate Statement of Undisputed Facts has been
11 provided, as has Defendants' Opposition to Plaintiffs Separate Statement of
12 Undisputed Facts. The Court should grant summary judgment to Defendants because
13 the policies and practices ofDefendants in implementing California Penal Code
14 section 12050 do not violate Plaintiffs constitutional rights and are otherwise lawful.
15 Local Rule 7-3 has been complied with through conference of counsel which
16 occurred on February 9, 10 and in person on February 14,2011.
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DATED: April 18, 2011 CARMEN A. TRUTANICH, City AttorneyGARY G. GEUSS, Chief Assistant City AttorneyCORY M. BRENTE Supr. Asst. City AttorneyELIZABETH MITCHELL, Deputy City Attorney
By JWENDY S AP RO, eputy City Attorney
Attorney for Defendants CHARLIE BECK ANDTHE LOS ANGELES POLICE DEPARTMENT
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 1. Introduction
3 Plaintiff challenges the Los Angeles Police Chief Charlie Beck's
4 implementation of the California statutes governing the licensing ofpersons to carry
5 loaded, concealed weapons in public. (Penal Code §§ 12050-12054.) California law
6 makes it a misdemeanor to carry a loaded, concealed weapon in public places (Penal
7 Code §§ 12025 and 12031), although numerous exceptions are contained in the
8 relevant Penal Code provisions. Plaintiff alleges that he was denied a concealed
9 carry permit because he failed to establish "good cause" as defined by Defendants.
10 The Complaint challenges California Penal Code section 12050 as applied to Plaintiff
11 on grounds pursuant to the Second Amendment and the Equal Protection Clause of
12 the Fourteenth Amendment. The allegations are focused on the "good cause"
13 requirements of Penal Code section 12050.
14 2. Factual Background
15 A. California Law.
16 Penal Code section 12050(B)(I) provides in relevant part:
17 "(B) The chief or other head of a municipal police depmiment of any city or city and
18 county, upon proof that the person applying is of good moral character, that good
19 cause exists for the issuance, and that the person applying is a resident of that city
20 and has completed a course of training as described in subparagraph (E), may issue to
21 that person a license to carry a pistol, revolver, or other firearm capable of being
22 concealed upon the person in either one of the following formats:
23 (I) A license to carry concealed a pistol, revolver, or other firearm capable of
24 being concealed upon the person."
25 The licensing statute authorizes a procedure for a limited number of persons
26 who meet the statutory criteria to be excepted from California's prohibition on the
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1 concealed cany of firearms.! "Section 12050 gives 'extremely broad discretion' to
2 the [chief of police] concerning the issuance of concealed weapons licenses."
3 Gifford v. City ofLos Angeles, 88 Cal. App. 4th 801, 805 (2001)(quoting Nichols v.
4 County ofSanta Clara, 223 Cal. App. 3d 1236, 1241 (1990». It also "explicitly
5 grants discretion to the issuing officer to issue or not issue a license to applicants
6 meeting the minimum statutOly requirements." Erdelyi v. O'Brien, 680 F.2d 61,63
7 (9th Cir. 1982). This discretion must be exercised in each individual case. "It is the
8 duty of the [chief of police] to make such an investigation and determination, on an
9 individual basis, on every application under section 12050." Salute v. Pitchess, 61
10 Cal. App. 3d 557, 560-61 (1976).
11 B. Los Angeles Police Department Licensing Program
12 Under the statutory framework, the Los Angeles Police Department administers the
13 licensing program for all of the City of Los Angeles. The Gun Unit is responsible for
14 administering all the concealed weapons permit applications that come into the Los
15 Angeles Police Department. (See Defendants' Separate Statement ofUndisputed
16 Material Facts # 1, (hereinafter "MF #"».
17 In 1994, the case ofAssenza v. City ofLA, et aI, BCI15813, changed and
18 shaped the policies ofLAPD regarding CCW permit issuances. In the Assenza case,
19 pursuant to a stipulation for Entry of Judgment, the "good cause" policy was changed
20 to reflect the following "good cause" definition in relevant part:
21 "Good cause exists if there is convincing evidence of a clear and
22 present danger to life or of great bodily injury to the applicant, his (or
23 her) spouse, or dependent child, which cannot be adequately dealt
241 Penal Code section 12025(a) states "A person is guilty of canying a concealed
25 firemm when he or she does any ofthe following: (1) Carries concealed within anyvehicle which is under his or her control or direction any pistol, revolver, or other
26 firearm capable of being concealed upon the person. (2) Carries concealed upon his orher person any pistol, revolver, or otlier firearm capable of being concealed up'on the
27 person. (3) Causes to be can-ied concealed within any vehicle in which he or she is anoccupant any pistol, revolver, or other firearm capable of being concealed upon the
28 person."
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1 with by existing law enforcement resources, and which danger cannot
2 be reasonably avoided by alternative measures, and which danger
3 would be significantly mitigated by the applicant's carrying of a
4 concealed firearm.'"
5 Good cause is deemed to exist, and a license will issue in the absence
6 of strong countervailing factors, upon a showing of any of the
7 following circumstances:
8 (a) The applicant is able to establish that there is an immediate or
9 continuing threat, express or implied, to the applicant's, or the
10 applicant's family, safety and that no other reasonable means exist
11 which would suffice to neutralize that threat.
12 (MF # 2). Simply fearing for one's own personal safety is not good cause. (MF # 3).
13 In 1995, after the Assenza case, LAPD immediately adopted and began
14 implementing the aforementioned policy. In 1999, the State of California
15 standardized the application process and required additional mandates. As a result,
16 the Department updated its policies and procedures which created additional scrutiny
17 and more responsibility in processing CCW applications. (MF # 4).
18 C. The Application Process.
19 In order to obtain a CCW permit from the Los Angeles Police Department,
20 the inquiring person can contact the LAPD Gun unit and speak with one ofthe sworn
21 officers assigned to the Gun Unit, designated as the CCW·coordinator. On the phone
22 the CCW coordinator will explain to the applicant the training requirements and what
23 documents to bring to the initial interview with the CCW coordinator. Specifically,
24 the coordinator will ask for the following materials: The standard DOJ CCW
25 application completed; a letter from his or her attorney if applicable; a declaration or
26 statement of good cause; crime repOlis and any additional supportive documentation;
27 reference letters if submitted; firearm training certificate; copy of driver's license, a
28 utility bill, guard cards, exposed gun cards, or any other applicable celiificates. (MF
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1 # 5). The coordinator also explains to the applicant the CCW protocol, which
2 includes the application process, what will happen if their application is approved or
3 denied, and the review process if the applicant wishes to have their denial reviewed.
4 The interested individual then schedules an appointment to come in and interview
5 with the coordinator which is wholly dependent upon the applicant's availability.
6 (MF # 6). From the day the applicant signs the application in the presence of the
7 coordinator at the interview, the Gun Unit has 90 days in which to review the
8 application. (MF # 7). A detailed description of the nine-step application/review
9 process is provided in the declaration ofRick Tompkins, the supervisor of the CCW
10 permit process. (MF # 8).
11 There are currently 24 active CCW permits issued through and maintained by
12 the Los Angeles Police Department. The Gun Unit receives and processes
13 approximately 300 applications per year. (MF # 9). The Gun Unit evaluates each
14 application on the merits and treats every applicant equally regardless of ethnicity,
15 gender, religion, or social status. There is no special treatment for high-profile
16 people. The Gun Unit has had so-called "celebrities" apply for CCW permits and
17 have denied their applications for failure to demonstrate good cause. No celebrities
18 have active CCW permits with the LAPD. (MF # 10).
19 D. Birdt's Application for a CCW Permit
20 Plaintiff alleges that he was denied a license to carry a concealed weapon by
21 the Los Angeles Police Department because he failed to identify an imminent or
22 specific threat satisfying the Department's good cause requirement. (MF # 11). In his
23 declaration submitted in support of Plaintiffs Motion for Summary Judgment, he
24 states he volunteers as a judicial officer for the Los Angeles Superior Court and as an
25 advocate for the Juvenile Court. (MF # 12). He does not state that he provided any
26 documentation supporting his "good cause" statement.
27 Jonathan Birdt's CCW pelmit application was reviewed, analyzed, and
28 processed in the exact same manner in which every application is processed. (MF #
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1 13). After reviewing Mr. Birdt's declaration, and supporting documentation (which
2 consisted of copies ofhis California and Nevada state bar cards, California driver's
3 license, his Nevada and Utah CCW permits, National Rifle Association ("NRA")
4 membership card, and copies of certificates of completion of a firearms safety course)
5 Jonathan Birdt's CCW permit application was denied solely because he demonstrated
6 no "good cause" for the issuance of a permit beyond mere self-defense. (MF # 14).
7 Specifically, convincing evidence was not established of a clear and present danger
8 to his life or of great bodily injury to himself or his family, which could not be
9 adequately dealt with by existing law enforcement resources, and which danger could
10 not be reasonably avoided by alternative measures. He did not provide proof that his
11 work is of such a nature that it requires carrying a concealed weapon. (MF # 15).
12 Mr. Birdt was sent a letter indicating that his CCW permit application was
13 denied for lack of good cause. He was also notified that ifhe wished to challenge
14 this decision, he needed to request in writing a hearing by the citizen advisory board.
15 (MF # 16). He simply sent the original letter back with the handwritten words "Yes,
16 I contest your decision." He was then contacted by the CCW coordinator Kosal Bun
17 by telephone and told that he needed to write a formal letter requesting a hearing and
18 the current letter would not suffice. (MF # 17).
19 In October, 2010 Mr. Birdt finally sent in a formal letter indicating that ifhe
20 was not issued a CCW permit, he would be filing a lawsuit. (MF # 18). Even though
21 this was not technically a letter requesting a hearing by the citizen advisory board, it
22 was treated as such, and his name and information was forwarded to the citizen
23 advisory board. On March 24, 2011, LAPD received notice from the CCW Citizens
24 Advisory Board indicating that they had reviewed Plaintiff Jonathan Birdt's
25 application, and they recommended against the issuance of a CCW permit to Mr.
26 Birdt because he failed to establish good cause for licensure. (MF # 19).
27 Plaintiff indirectly alleges his right to interstate travel is infringed without
28 having a CCW permit. (Complaint, ~ 26). When driving from Nevada to Califomia,
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1 Plaintiff must remove his weapon and lock it in a container in the trunk of his car.
2 By doing this, Plaintiff claims he is in violation ofNevada law or restrictions on his
3 CCW permit. Plaintiff believes that the act of removing his gun and putting it in a
4 locked container amounts to brandishing a weapon, despite how discreetly this act is
5 done. (MF # 21)
6 3. The Second Amendment Does Not Encompass a Right to Carry a Loaded
7 Concealed Weapon in Public
8 Plaintiffs primaty challenge is based on a claim that the City's policies and
9 procedures violate the Second Amendment. In District ofColumbia v. Heller, 554
10 U.S. 570, 128 S. Ct. 2783,2788; 171 L.Ed.2d 637 (2008), the United States Supreme
11 COUlt held that the Second Amendment protects an individual's right to possess
12 firearms in the home for self-defense and that the city's total ban on handguns, as
13 well as its requirement that firearms in the home be kept nonfunctional even when
14 necessary for self-defense, violated that right. However, the Heller decision does not
15 affect the constitutionality of Penal Code sections 12025(a) or 12050. Plaintiff
16 challenges the concealed carry permit statute without challenging the Penal Code
17 sections regulating the carrying of concealed and loaded firearms. Penal Code
18 sections 12025(a) and 12031(a) have been upheld in California against a Second
19 Amendment challenge after Heller. People v. Flores, 169 Cal. App. 4th 568,
20 575-576 (2008); People v. Yarbrough, 169 Cal. App. 4th 303, 312-314 (2008). In
21 Yarbrough, the defendant was convicted ofviolating Penal Code section 12025(a)(2),
22 for carrying a concealed weapon on residential property that was fully accessible to
23 the public. Noting Heller had "specifically expressed constitutional approval of the
24 accepted statutOly proscriptions against carrying concealed weapons," Yarbrough
25 held:
26 "we find nothing in Penal Code section 12025, subdivision (a), that
27 violates the limited right of the individual established in Heller to
28 possess and carry weapons in case of confrontation. Section 12025,
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1 subdivision (a), does not broadly prohibit or even regulate the
2 possession of a gun in the home for lawful purposes of confrontation
3 or self-defense, as did the law declared constitutionally infirmed in
4 Heller. Rather, section 12025, subdivision (a), in much more limited
5 fashion, specifically defines as unlawful canying concealed within a
6 vehicle or 'concealed upon his or her person any pistol, revolver, or
7 other firemm capable of being concealed upon the person.' Id. at
8 314. Further, carrying a firearm concealed on the person or in a
9 vehicle in violation of section 12025, subdivision (a), is not in the
10 nature ofa common use ofa gun for lawful purposes which the comt
11 declared to be protected by the Second Amendment in Heller."
12 Id. at 313-14.
13 Unlike possession of a gun for protection within a residence, carrying a
14 concealed firearm presents a recognized "threat to public order," and is '''prohibited
15 as a means ofpreventing physical harm to persons other than the offender.'
16 [Citation.]" People v. Hale, 43 Cal.App.3d 353, 356 (1974). A person who carries a
17 concealed firearm on his person or in a vehicle, "which permits him immediate access
18 to the firearm but impedes others fi'om detecting its presence, poses an 'imminent
19 threat to public safety ... .' [Citation.]" Id. at 314 citing (People v. Hodges, 70
20 Cal.AppAth 1348, 1357 (1999». People v. Flores affirmed convictions under
21 sections 12025 and 12031 in the face of a Heller challenge. With regard to the
22 section 12031 conviction, the Court in Flores reasoned: Section 12031 prohibits a
23 person from "carr[ying] a loaded firearm on his or her person ... while in any public
24 place or on any public street." [Citation.]. The statute contains numerous exceptions.
25 There are exceptions for security guards (id., subd. (d», police officers and retired
2 the legal question posed by Plaintiff succinctly:
3 "While Plaintiffmay feel a bit less secure not being able to cany a
4 concealed weapon on his person or in his car when he drives into
5 urban areas, the denial of a license for a concealed weapon is not
6 tantamount to the denial or waiting period for the right to vote,
7 [citation], or to receive welfare or medical benefits, [citations]. A
8 concealed weapons license is not even a government benefit that rises
9 to the level of benefits deemed by the United States Supreme Court as
10 not vital, such as lower university tuition, [citations], or suing for
11 divorce, [citation]. Based on the foregoing, Defendants did not
12 deprive Plaintiffof the right to travel."
13 Id. at 414. Based on the foregoing, Defendants are entitled to summary judgment.
14 8. Plaintiff Has No Due Process Right in a Concealed Carry Permit
15 A threshold requirement for asserting a due process claim is the existence of
. 16 a property or liberty interest. Board ofRegents v. Roth, 408 U.S. 564, 569 (1972).
17 Plaintiffs due process claim is controlled by Erdelyi, supra, 680 F.2d at 63, which
18 held the discretionary language in Penal Code section 12050 does not create a
19 property interest. Further, the Court held that the Plaintiff "did not have a liberty
20 interest in obtaining a concealed weapons license." Id. at 64. Accordingly, Plaintiff
21 does not have a property interest or liberty interest in a concealed weapons permit.
22 As such, the Los Angeles Police Department was not required to provide him with
23 due process before denying his permit application. Id. Nevertheless, as outlined in
24 the statement of facts, Defendants afforded Plaintiff a right to appeal. Plaintiffhas
25 exercised that right. Accordingly, Defendants are entitled to summary judgment on
26 the claim Plaintiffs due process rights have been violated.
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1 9. Conclusion
2 Based on the foregoing, Defendants request the Court grant their Motion for
3 Summary Judgment and deny Plaintiffs Motion for Summary Judgment.
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5 DATED: April IS, 2011
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CARMEN A. TRUTANICH, City AttorneyGARY G. GEUSS, Chief Assistant City AttorneyCORY M. BRENTE Supr. Asst. City AttorneyELIZABETH MITCHELL, Deputy City Attorney
By -----;;y-nrh~~~~~~~____,___~.,__.__;_;_--W < PER ,Deputy City Attorney
Attorney for Defendants CHARLIE BECK ANDTHE LOS ANGELES POLICE DEPARTMENT
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