[UPDATE: The decision below was filed July 7, and PACER, which I checked before posting the post, echoes this. Nonetheless, as two commenters pointed out, the decision is dated June 25, one day before Heller was handed down. If anyone could explain why there'd be a two-week delay between the signing of the written decision and the filing — something I generally haven't found to be the case in district court — I'd love to hear it.
It may be that my condemnation of the court was mistaken or at least overstated, given the June 25 date; on the other hand, Heller was big news the very next morning -- and anticipated to be coming down then -- so if the district court decision wasn't officially filed until July 7, I wonder why there wouldn't be an opportunity to correct it. In any case, I'd love to hear what people who are knowledgeable on such matters, especially in the Northern District of California, could tell me.]
Bates was formerly a sergeant with the San Jose Police Department. He was granted a disability retirement from the department in April 2004, due to the fact that the City could not accommodate the work restrictions placed upon him by his physician, at least in part to “avoid psychologically or physically stressful work.” Upon receipt of this information, defendant Amoroso, then deputy chief, denied Bates a concealed weapon permit under Cal.Penal Code § 12027.1(e) which prohibits the issuance of a permit to carry a concealed weapon to any officer who has retired “because of a psychological disability.” ...
Bates now sues the City, Davis and Amoroso for violation of his civil rights to freedom from deprivation of due process of law, freedom from summary punishment and freedom from the deprivation of the right to bear arms for failing to initially grant him a concealed weapons permit under § 12027.1. [Footnote:] The denial of a concealed weapons permit does not constitute a deprivation of the right to bear arms. Hickman v. Block, 81 F.3d 98, 101-02 (9th Cir.1996), cert. denied, 519 U.S. 912 (1996)....
But Hickman expressly rested on the view that "the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen" — a view D.C. v. Heller expressly rejected. As one might guess, while district courts are generally bound by circuit precedent, "where intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority" — including when the irreconcilability is in the "mode of analysis" and not just square conflict in the specific holdings — "a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 899, 900 (9th Cir. 2003). And it's not like Heller was a low-profile case that judges and clerks would routinely miss, or that the conflict between Heller and Hickman> was somehow subtle. Now it may well be that under Heller, concealed weapons bans remain constitutional; there's language in Heller that suggests this. I should also note that all the briefing in this case came before Heller, so the parties technically didn't raise Heller; and more broadly, my skim of the plaintiff's opposition to the city's motion for summary judgment didn't really discuss the Second Amendment. If the court had made any of these points, that would have been fine. But simply relying on a precedent that Heller swept away strikes me as wrong, though of a piece with other recent decisions (see here and here).
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