SCOTUS Watch: Law Enforcement Groups file Brief in Support of Petition for Certiorari to the U.S. Supreme Court to Review Excessive CCW Carry Restrictions

    On Monday, March 25^th, 2024, the Peace Officers’ Research Association of California, the California Association of Highway Patrolmen, the California State Sheriffs' Association and the Crime Prevention Research Center (CPPC) filed an amicus brief in support of a Petition for Certiorari to review the constitutionality of New York’s new concealed carry law, which severely restricts the places CCW permit holders may carry concealed handguns much like California’s Senate Bill 2 (SB 2).  

    The brief is in connection to the U.S. Supreme Court case of Ivan Antonyuk, et al. v. Steven James, the Acting Superintendent of the New York State Police, et al. The case challenges New York’s Concealed Carry Improvement Act (CCIA), a revised gun law adopted in New York in July 2022 – only days after the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association Inc. v. Bruen (Bruen).

    In Bruen, SCOTUS struck down as unconstitutional New York’s concealed carry law that required an individual to provide “proper cause” existed before a concealed carry license would be issued. The court held that this “proper cause” requirement violated the 14^th Amendment because it prevented law-abiding citizens who have ordinary self-defense needs from exercising their 2^nd Amendment right to keep and bear arms. Following Bruen, New York and California issued laws in an obvious attempt to evade the ruling.

    In February, PORAC, the California Association of Highway Patrolmen (CAHP), the California State Sheriffs’ Association (CSSA), and the Crime Prevention Research Center (CPPC) filed an amicus brief in the Ninth Circuit Court of Appeals challenging California’s SB 2. The related amicus filed in Antonyuk similarly challenges the unconstitutional efforts to defy the mandates of Bruen. The brief seeks to enforce the Bruen ruling by safeguarding citizen’s self-defense rights in public.

New York’s Revised Concealed Carry Law & Similarities to California’s Senate Bill 2

    Coined as the “Bruen Response Bill,” the CCIA restricts gun access by making the licensing process more onerous and expands the list of designated “sensitive places” where carrying firearms is prohibited. In place of the “proper cause” standard that Bruen invalidated, the CCIA requires an applicant to demonstrate “good moral character.” “Good moral character” is defined as “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” The CCIA demands character references, information about cohabitants and adult children, a personal “interview” with a licensing official, more than two full days of firearms training, and a list of social media accounts. 

    For those that persevere through this process, the CCIA then restricts where in public a licensee may carry a firearm, declaring not just the “island of Manhattan” but virtually the entire landmass of New York a “sensitive place.” When asked where New Yorkers could carry under the CCIA, Governor Hochul responded “[p]probably some streets.” These so-called “sensitive locations” include 20 categories, including the most ordinary locations. Filling in the gaps, the CCIA also effectively names all private properties in New York as “restricted locations” unless the owner posts “clear and conspicuous signage” or gives “express consent.”

    Like the CCIA, California’s SB 2 renders concealed carry permits effectively impossible to exercise by defining nearly every location as a prohibited “sensitive place.” Both SB 2 and the CCIA fail to adhere to the Bruen directive by expanding longstanding sensitive place definitions to encompass nearly their entire states, other than some streets and sidewalks. 

Procedural History

    Plaintiffs in the Antonyuk litigation first challenged certain provisions of the CCIA in district court under the First, Second, Fifth, and Fourteenth Amendments. The district court struck down several provisions of the CCIA, barring enforcement of those provisions. The Second Circuit then issued a stay effectively putting the district court’s ruling on hold. And in December 2023, the Second Circuit vacated much of the district court’s injunction, finding virtually all of the CCIA to be facially constitutional under the 2^nd Amendment. 

    In February 2024, petitioners filed a petition for certiorari asking the U.S. Supreme Court to review the Second Circuit’s December decision. The petition seeks review of two primary questions: (1) the proper historical time period for Bruen analysis; and (2) whether a “good moral character” requirement conflicts with Bruen. 

Protecting Bruen & Public Safety

    In Bruen, the Supreme Court identified “settled” sensitive places (like legislative assembles, polling places, and courthouses) where carrying a firearm is prohibited. The Court concluded that laws restricting protected 2^nd Amendment conduct must be “consistent with the Nation’s historical tradition of firearm regulation.” As to whether there are special places where the right to carry might be restricted without infringing on 2^nd Amendment rights, the Court explained that the “historical record yields relatively few 18^th and 19^th century ‘sensitive places.’” Likewise, the Court cautioned that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement” is too broad of a category and would essentially eviscerate the general right to publicly carry arms. 

    In addition to the constitutional challenges presented by SB 2 and the CCIA, the laws themselves make little sense from a law enforcement perspective and do little to address lawmakers’ purported public safety concerns. CCW permit holders are some of the most highly vetted, trained, responsible, and law-abiding citizens. Violent criminals do not bother with CCW permits and simply carry illegally, and criminals intent on murder will not be deterred by these “sensitive place” designations. In actuality, criminals intent on committing a mass murder will likely choose to do so in a “sensitive place” where he or she is less likely to encounter armed citizens. 

    Again, these interests align with the research findings of renowned CPPC President John Lott, Jr., Ph.D. The Antonyuk brief cites his research concluding that right to carry laws actually reduce violent crime, especially murder and rape, whereas expansive restrictions on CCW permits may actually induce more violence.

    Laws such as SB 2 and the CCIA encourage gun violence by constricting self-defense options and reducing risks to criminals. States sincerely desiring to reduce gun violence and promote public safety could – instead of infringing on 2^nd Amendment protections and defying Bruen directives – enact laws and fund enforcement to keep guns out of the hands of prohibited persons and to impose meaningful consequences when guns are used in violent crimes.

    The constitutionality of restrictions on where concealed carry may be prohibited is a serious national concern, particularly for the Sheriffs who issue the permits and the officers that must enforce constitutionally suspect laws.  Forcing officers to potentially violate citizens’ civil rights will subject officers to section 1983 liability and damages public confidence in law enforcement. Moreover, officers have a direct interest in protecting their own right to self-defense and concealed carry in their retirement.      

Attorneys David E. Mastagni, Taylor Davies-Mahaffey, and Timothy Talbot authored the brief. 

Image Creator: Michelle Ress 

Watch Kathleen Mastagni Storm’s Oral Argument in the Sixth District Court of Appeals on Behalf of the Palo Alto Professional Firefighters, IAFF Local 1319

Watch the oral argument below:

    On March 14, 2024, partner, Kathleen Mastagni Storm, presented oral argument in the Sixth District Court of Appeals over the City of Palo Alto’s illegal repeal of binding interest arbitration for Fire and Police Department employee disputes. The legal battle started in 2011, when the City of Palo Alto unilaterally placed Measure D on the ballot repealing binding interest arbitration from the City’s Charter. Prior to the change, the Charter required disputes involving wages, hours, and other terms and conditions of employment be submitted to binding arbitration. Palo Alto voters passed Measure D in November 2011.

    In 2020, Local 1319, on behalf of the State of California, filed a Writ in Quo Warranto in superior court to invalidate Measure D and restore the Charter’s binding interest arbitration procedures. The superior court found in Local 1319’s favor, but declined to rescind the unlawful charter amendment. Therefore, the State and Local 1319 appealed the decision. On Thursday, March 14^th, the 6^th District Court of Appeals heard argument on what the appropriate remedy should be.

The Backstory:

    Around 2010, the City of Palo Alto began efforts to remove the Charter’s binding interest arbitration provision. Local 1319 immediately demanded to meet and confer with the City over the proposed changes. From the beginning, the City adamantly refused. This resulted in Local 1319 filing an Unfair Practice Charge with PERB in 2011 alleging the City violated section 3507 of the California Government Code. Section 3507 is part of the Meyers-Milias-Brown Act (MMBA), and provides in part:

A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations chapter…The rules and regulations may include provisions for all of the following: … (5) Additional procedures for the resolution of disputes involving wages, hours, and other terms and conditions of employment. 

    The MMBA requires public agencies to engage in a “meet and confer” process with representatives of affected employee organizations before adopting rules/regulations related to the subjects mentioned above. Here, the Local argued it had been unlawfully deprived of the meet and confer rights to which the Local is entitled under Government Code section 3507. PERB ultimately found that the City violated the MMBA by failing to consult in good faith with the Local over the elimination of binding arbitration. And PERB ordered the City’s resolution referring to voters the ballot measure and to rescind the binding arbitration void.

    Although PERB determined the City violated the MMBA, it also held it could not overturn the election results repealing the provision. PERB concluded a quo warranto action was the exclusive remedy for this situation. A quo warranto action is a legal remedy used to revoke a charter amendment.

    As such, the Local filed a quo warranto action in superior court asking the court to determine whether the City’s charter amendment was invalid by reason of noncompliance with the MMBA and whether the City was required to restore binding arbitration.

    In February of 2022, the superior court issued its final decision concluding the City’s resolution to submit Measure D to the voters was an unlawful exercise of authority within the meaning of California Code of Civil Procedure § 803. Although the court ruled in favor of the Local on some issues, it did not grant their requested remedy of invalidation of Measure D.

Appeal to the Sixth District Court of Appeals: What is the Appropriate Remedy?

    Despite deeming Local 1319 the prevailing party, the superior court’s remedy failed to provide meaningful relief. Instead of invalidation, the trial court only enjoined the City from its unlawful action until it (1) meets and consults and (2) reaffirms its repeal of binding interest arbitration at a City Council meeting.

    On appeal, Kathleen Mastagni Storm argued the appropriate remedy is invalidation of Measure D and restoration of the binding arbitration provision. This is the only remedy that vindicates Local 1319’s rights and effectuates the purposes of the MMBA. The trial court’s remedy creates a dangerous precedent encouraging MMBA violations and weakening union rights. As the trial court did not restore the status quo ante and left Measure D intact, Local 1319 is left trying to recoup its losses at the bargaining table. It also encourages the City to engage in surface bargaining.

    Invalidation of Measure D serves the public interest by protecting and enforcing the MMBA. The public has an interest in ensuring charter amendments are validly enacted in accordance with the law and securing stable employer-employee relations. Failing to restore the status quo subverts both the MMBA and the will of the Legislature while simultaneously ignoring the public interest in promoting collective bargaining for the resolution of labor disputes.