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Law Office Management
Feb. 2, 2015
California's Triggerman
Chuck Michel takes on cases for the NRA, battling gun rights opponents as well as those on his own side.
C.D. "Chuck" Michel won big against what he calls the "gun grabbers" last February when a three-judge panel of the Ninth U.S. Circuit Court of Appeals reversed a trial court ruling in one of the most significant Second Amendment cases of his career. Not only did the 2-1 majority invalidate San Diego County's restrictive policy for obtaining a concealed-carry handgun permit, it went on to declare that the personal right to keep and bear arms extends outside the home.
Michel, a Long Beach-based contract attorney for the California Rifle and Pistol Association (CRPA) - the statewide affiliate of the National Rifle Association - has been the lead plaintiffs attorney in Peruta v. San Diego (742 F.3d 1144 (9th Cir. 2014)) since April 2010. In 2011 former Solicitor General Paul D. Clement filed an amicus brief on behalf of the NRA, and he later argued the case for the appellants. "We got everything we asked for from the court," says Michel, who drafted the pleadings.
In a 69-page opinion, Judge Diarmuid O'Scannlain, one of the circuit's most conservative members, crafted a meticulous analysis of the Second Amendment and pre-Civil War gun-ownership rights. He concluded that the county's interpretation of "good cause" to obtain a concealed-carry permit - documenting circumstances showing that the applicant was uniquely in harm's way - infringed the constitutional right to "bear Arms." O'Scannlain wrote, "[T]he right is, and has always been, oriented to the end of self-defense. Any contrary interpretation of the right, whether propounded in 1791 or just last week, is error." (Peruta, 742 F.3d at 1155 (emphasis by the court).)
One other federal circuit had explicitly issued such a holding before - Moore v. Madigan (702 F.3d 933 (7th Cir. 2012)) - but not in so detailed and definitive an opinion.
From Michel's perspective, the broad sweep of O'Scannlain's prose also vindicated the NRA's steady and deliberate approach to litigation. In the wake of the U.S. Supreme Court's landmark decision recognizing an individual's right to own firearms (District of Columbia v. Heller, 554 U.S. 570 (2008)), gun-rights groups had rushed to clarify the scope of permissible regulation. The NRA's contentious rival - the Second Amendment Foundation in Washington state - had brought a similar challenge to concealed-carry policy in California's Yolo County. Three weeks after the Ninth Circuit's decision in Peruta, the same panel invalidated Yolo's policy. But it did so in an unpublished three-page decision that cited Peruta as controlling precedent. (Richards v. Prieto, 560 Fed. Appx. 681 (9th Cir. 2014).)
When the sheriff of San Diego County declined to petition for rehearing of Peruta, others attempted to step into the breach. But in November the Ninth Circuit denied intervenor status to Attorney General Kamala D. Harris, the Brady Campaign to Prevent Gun Violence, and the California Police Chiefs and Peace Officers' Associations. (Peruta v. County of San Diego, 771 F.3d 570 (9th Cir. 2014).) Still, Judge Sidney R. Thomas's strong dissent in Peruta gave Michel cause for concern.
In December, two days after the Montana jurist began a seven-year term as Chief Judge, Michel's worries were borne out: The Ninth Circuit called for briefing - due Christmas Eve - to determine whether Peruta should be reheard en banc. If review is granted, Thomas will lead a tribunal that includes ten other judges chosen at random.
No one knows, of course, how the en banc process will conclude. "The Circuit consists of roughly two-thirds Democratic appointees and one-third Republican," says Michel. "But judges don't always vote along political lines. And our position is very persuasive."
Should the respondents lose an en banc ruling, Michel promises he won't back down. He'll appeal Peruta all the way to the U.S. Supreme Court - very likely joined by libertarians and other advocates of individual gun rights.
While most lawyers display diplomas and personal photos on their walls, Chuck Michel's spacious, second-floor office facing Long Beach's picturesque marina is decked with firearms collectibles and gun-related artwork. Hanging behind his big wooden desk is a rare, single-shot Liberator pistol, manufactured during World War II for Resistance fighters; a chopped-up Glock handgun; antique Texas Ranger badges; and vintage posters of Tom Mix, the legendary gunslinging cowboy of Hollywood's silent era.
In any other law firm, the motif might seem over the top. But at Michel & Associates, home to more than a dozen attorneys, the décor couldn't be more appropriate: Though its general practice ranges from criminal defense to environmental, business, and labor and employment cases, the firm's specialty is firearms litigation, accounting for a quarter to one-third of its billings.
Michel, 56, is a self-described "true believer" in what he terms the "civil rights self-defense movement." He even named his Labrador retriever "Heston" to honor Charlton Heston, the actor and former standard-bearer of the NRA.
Tall and powerfully built, Michel's unassuming affect belies his encyclopedic knowledge of gun-control history and firearms litigation. He is the author of the authoritative California Gun Laws and has helped shape - as either attorney of record or an amicus - many of the biggest gun-rights cases of the past two decades.
Michel traces his fondness for firearms to his days growing up in the northern New Jersey township of Bridgewater. "My father had been in the Army," he says. "He was a hunter and a volunteer safety-and-skills instructor for the NRA, and he taught me and my two brothers how to shoot." Back then, Michel recalls, their heavily wooded subdivision bordered a YMCA campground. "You could literally walk off the rear porch and hunt for squirrels or rabbits."
Michel's father, who held a marketing job at Johnson & Johnson, was also a competitive marksman. "He had a lot of low-caliber, high-accuracy rifles and different shotguns at the house that he used for birds, deer, and small game," Michel says. "You need a different type of gun for every kind of shot you're going to take."
Describing himself as a "fair" student, Michel says he was fortunate to be admitted to Rutgers University, where he graduated with a major in psychology and communications. At school, he says, "I became a little more focused, but I still didn't know what I wanted to do when I grew up."
Certain, however, that he wanted to escape the cold Northeast winters, he headed for Southern California, where he took a management-training position marketing Select and OnTV, early forerunners of cable television. Over the next five years Michel did everything from stocking TV decoder boxes to installing the devices himself, eventually becoming a regional supervisor. To make extra money, he tended bar. But he felt he was just drifting. "If you reach thirty and you're still wearing a name tag," he says, "then you're not as successful as I wanted to be."
Michel applied for work at local law enforcement agencies but was turned down because of poor eyesight. And though the FBI called him back for a second round of interviews, the bureau's application and screening process seemed interminably slow. So Michel enrolled in law school at Loyola Marymount in Los Angeles. He interned for both the Los Angeles federal public defender's office and the district attorney's office, then graduated in 1989 and clerked for U.S. District Judge William Rea - an experience that enabled him "to see the practice of law from the bench." It also landed him a position in civil litigation at O'Melveny & Myers.
Like most first-year associates, Michel found himself analyzing documents, putting in long hours on discovery motions, and praying to be assigned to take a deposition on his own. His most vivid recollections aren't the cases he was assigned but rather discussions with his colleagues in the lunchroom - specifically, about O'Melveny's pro bono work supporting the City of Los Angeles's gun-control regulations. "Of those who voiced an opinion on the subject, we were nearly evenly divided," he says.
Michel's own feelings about the ineffectiveness of gun control deepened after he volunteered for the firm's trial advocacy program, trying misdemeanors in city attorneys' offices in Los Angeles County. "Nothing gets your blood pumping and your enthusiasm for the law going than a jury trial at that stage of your career," he says. "There's a big difference between being a litigator and being a trial attorney."
Along with learning how to win convictions, Michel came to sympathize with some defendants who faced gun-possession charges that he felt didn't warrant prosecution. "The average Joe Six-Pack with a gun collection doesn't know what's legal and what isn't," he says. "I'd see defendants coming through court who had been stopped by police coming back from the firing range and hadn't locked their gun in the right kind of hard case, or they couldn't get a concealed-carry permit. I began to think that the gun-control laws were being misapplied."
While still an O'Melveny associate, Michel wrote NRA general counsel Robert J. Dowlut to offer his services. Dowlut suggested he approach the organization's statewide affiliate, the CRPA, which operates as a separate legal entity.
Michel took that advice when he left O'Melveny to go solo in 1993. "I soon realized there was a niche group of people out there who owned guns and needed legal help," he says. "I started going out to gun clubs and fund-raising dinners, giving talks and advice. My practice took off." His primary focus: criminal defense.
It was a volatile year for gun issues. That summer a former client of Pettit & Martin wielding assault weapons fatally shot eight people in the firm's San Francisco office tower, reigniting the national debate. Attorneys around California responded by forming the Legal Community Against Violence (now the Law Center to Prevent Gun Violence), which began a push for state and local gun-control laws. When West Hollywood proposed a ban on the sale of cheap handguns known as "Saturday night specials," the law center offered its support.
The ordinance passed in 1996, and members of the CRPA decided it was time to fight back in court. But litigation was a new tack for the organization, which historically promoted gun-use education and shooting contests. Teaming with the NRA's national office, the CRPA retained Michel to file suit against West Hollywood.
In a preview of his legal strategy for later cases, Michel attacked the ban on preemption principles, arguing that only the state had the authority to regulate gun sales. After losing at trial he appealed, only to have the state Court of Appeal publish a unanimous decision upholding the ordinance. (California Rifle & Pistol Ass'n v. City of West Hollywood, 66 Cal. App. 4th 1302 (1998).)
Despite the stinging setback, Michel still believes his strategy was sound. At the time, most courts and legal scholars viewed the Second Amendment - "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" - as an anachronism pertaining to service in a state militia. Indeed, the same year Michel filed suit against West Hollywood, the Ninth Circuit held that the constitutional right to bear arms protected only the "collective right" related to militia service and that individuals lack standing to enforce rights under the Second Amendment. (Hickman v. Block, 81 F.3d 98 (9th Cir. 1996).)
"For a proponent of gun rights like Chuck Michel, California was and remains a very difficult legal environment," says UCLA law school professor Adam Winkler, who writes extensively on the Second Amendment and has appeared on panels with Michel at several legal conferences. "[In California,] the people who make the law, the people who interpret it, and those who enforce it are largely pro-gun control."
Such was the climate in 1989 when the Legislature passed the Roberti-Roos Assault Weapons Control Act in the wake of an earlier mass shooting - this one at a Stockton elementary school. (See Cal. Penal Code §§ 30500-30515.) The act, which banned a broad range of semi-automatic weapons, was followed by the now-expired federal assault-weapons ban enacted by Congress in 1994.
In 1999 the Legislature passed a series of amendments to the state assault-weapons law, tightening restrictions on the manufacture and sale of semi-automatics in California. Three years later, the Ninth Circuit upheld those amendments and reaffirmed the collective-right interpretation of the Second Amendment that it had articulated in Hickman. (Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).)
In spite - or perhaps because - of the West Hollywood outcome, Michel's niche practice continued to grow, along with his reputation as a talented litigator. "Chuck and I had a very good professional relationship," recalls Sayre Weaver, who defended West Hollywood in the Saturday-night-special case. (She is now of counsel to Richards, Watson & Gershon.) "He was above board and didn't pull punches. We were both young and determined and litigated fiercely."
Over time, however, the political winds shifted and Michel's trial-court skills paid off. In 2005 he was part of the legal team that successfully defended gun distributors and manufacturers - including Glock, Browning, and Colt - against a trio of judicially coordinated lawsuits brought by several California cities and counties. The plaintiffs had alleged that illegal design and marketing of handguns amounted to an unfair business practice by enabling criminals to acquire the weapons and cause a public nuisance. (In re Firearms Cases, 126 Cal. App. 4th 959 (2005).)
Then in 2008 Michel gained a measure of vindication for his West Hollywood defeat, using state-preemption theories to invalidate a San Francisco ballot initiative that had barred residents from possessing handguns within city limits; the measure also criminalized the sale, transfer, and/or distribution of firearms and ammunition. His victory was sweetened by the award of $300,000 in attorneys fees for the NRA. (Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895 (2008).)
Not surprisingly, those courtroom victories drew mounting criticism of the NRA from gun-control advocates who saw Michel as overzealous. But the victories also attracted friendly fire from fellow crusaders in the gun-rights movement. "Not only am I constantly battling the gun-ban lobby," Michel says, referring to organizations such as the Law Center to Prevent Gun Violence and the Brady Center to Prevent Gun Violence, "but people on my own side are throwing darts at the work I do. So I've got to bob and weave against both opposing counsel and friends who think their cases are better than mine."
As Michel explains the divergent views and strategies within the firearms rights movement, he makes clear that the NRA is just one voice among a cluster of other groups.
The association's Civil Rights Defense Fund - a tax-exempt organization based in Fairfax, Virginia - is primarily a funding source for gun-rights litigation. Requests for support come from lawyers working independently on cases around the country, as well as from the litigation unit of the NRA's nonprofit Institute for Legislative Action (ILA), also based in Fairfax, with offices in Washington, D.C., and Sacramento. The institute actively manages litigation that the NRA chooses to join.
"We get involved both reactively in cases that have already been filed, and offensively on our own initiative," says Chris Conte, the ILA's litigation manager. In Peruta, the California Rifle and Pistol Association joined the litigation as a named party after Michel asked Conte for his backing. "We talked about the issues and the prospects for success in the case," he says, "and decided to join Chuck."
As both Conte and the ILA's website emphasize, "the goal in every case is to strategically advance the rights of gun owners, while not creating bad precedent."
But the NRA's carefulness to avoid defeat has sparked criticism from rival gun-rights and libertarian organizations. Foremost among them are the Cato Institute of Washington, D.C., and the Second Amendment Foundation (SAF), which have charged the NRA with being too cautious in defending the Second Amendment in high-stakes litigation.
A nonprofit established in 1974, the SAF has more than 650,000 dues-paying members and contributors who finance gun-rights cases nationally. Its founder and executive vice president, conservative businessman Alan Gottlieb, rose to prominence in gun circles by hosting a series of academic conferences beginning in the mid 1970s. His goal was to forge a consensus that the Second Amendment protects the gun rights of individuals - and not only when they participate in a state militia.
"We're on the same side of the most basic issues," Gottlieb says of the SAF and the NRA, noting that the two groups often support each other's lawsuits with amicus briefs. "But quite honestly, I don't know that the NRA really has a litigation strategy. They seem to be playing catch-up to us."
Michel scoffs at such criticism, countering that the SAF and others are sometimes overly impulsive in deciding when and where to bring lawsuits. He faults the SAF for initiating cases in hostile jurisdictions where they have little chance to win and, in his view, are likely to cause harm. Among other purported miscues, Michel lists SAF's recent failures - in New York, New Jersey, and Maryland - to overturn state gun-permit laws similar to those stricken in Peruta. (Kachalsky v. County of Westchester, 701 F.3rd 81 (2nd Cir. 2012); Drake v. Filko, 724 F.3rd 426 (3rd Cir. 2013); Woollard v. Gallagher, 712 F.3rd 865 (4th Cir. 2013).)
"They think it's better to throw the Hail Mary pass into the end zone," Michel says of SAF's approach. "Even if [they] don't connect," he adds, mixing his metaphors, they believe "everybody will realize that they need to get out the pitchforks and torches. I just don't see the villagers rising up like that."
In Heller, however, the Hail Mary pass did connect. Filed in 2003, the landmark Second Amendment suit challenged the constitutionality of a District of Columbia ordinance restricting the ownership of handguns. The case was the brainchild of Robert A. Levy, then a senior fellow at the Cato Institute; Clark Neily, an attorney at the Institute for Justice who represented the plaintiffs privately; and a relatively unknown young lawyer named Alan Gura. A former California deputy Attorney General, Gura had opened a small private practice in Alexandria, Virginia. Although he had never before filed a Second Amendment complaint, Gura was selected to lead the litigation.
The decision to file the Heller case sent shock waves through the gun-rights community. The NRA actively opposed filing the case even though it had campaigned for individual gun-ownership rights since the late 1970s, according to UCLA's Winkler, who chronicles the friction between the Heller lawyers and the NRA in Gun Fight: The Battle Over the Right to Bear Arms in America (W. W. Norton, 2013).
The organization was convinced that, given the great weight of contrary legal precedent dating back to the U.S. Supreme Court's decision in United States v. Miller (307 U.S. 174 (1939)), contesting D.C.'s ban on Second Amendment grounds would backfire on appeal. According to Winkler, in August 2002 professor Nelson Lund of George Mason Law School, whose chair was endowed by the NRA, tried to dissuade Levy from proceeding with Heller. Levy, a successful entrepreneur who had studied under Lund, balked and decided to fund the litigation out of his own pocket. Today, Levy chairs Cato's board of directors and is a major player nationally in libertarian politics.
The NRA's case for restraint at the time, Michel maintains, was grounded in realpolitik. "Back then, you had [Justices] Rehnquist and O'Connor still on the Court," he says. "Both justices were very doubtful votes on the Second Amendment." In terms of tactics and timing, he contends, "Heller was a bad choice."
But Levy and Gura thought otherwise, and they began the search for plaintiffs for a Second Amendment challenge. They recruited six, including D.C. resident Shelly Parker, who claimed she'd been threatened by drug dealers, and licensed "special police" officer Dick Heller, who was permitted to carry a handgun while on duty patrolling federal buildings but could not keep one in his home.
As the NRA anticipated, the district court dismissed the suit in 2005, upholding the constitutionality of the D.C. ordinance. But two years later a panel of the U.S. Court of Appeals for the D.C. Circuit reversed. The court found 2-1 that the ban violated the Second Amendment right to keep arms in the home. (Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).) The decision joined an earlier Fifth Circuit ruling in a Texas case that had been regarded largely as an outlier. (United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).) With the influential D.C. Circuit now also in conflict with the Ninth, Supreme Court review seemed inevitable.
By 2007, when the Court finally granted certiorari, Michel says the legal landscape had shifted dramatically. "While Heller was pending [in the lower courts], Rehnquist died and O'Connor retired, and they were replaced by Roberts and Alito," he says. "That's when you picked up the five votes you needed to win. There was a lot of luck involved."
Luck aside, Michel continues, "everybody in the gun-rights movement threw their weight behind [Heller]." His former law firm, O'Melveny & Myers, was also in the mix, representing the District of Columbia.
Michel drafted an amicus brief on behalf of the International Law Enforcement Educators and Trainers Association, other police associations, and 29 elected California district attorneys in counties from Alpine to Santa Barbara to San Bernardino. His was one of nearly 70 amici submissions in the case.
Focusing largely on the hot-button issue of whether gun control actually reduces criminal violence, Michel's brief relied on criminology research and statistics. "In the hands of law-abiding citizens," he argued, "guns provide very substantial public safety benefits," deterring the rate of both home-invasion burglaries and assaults. The point of gun control, he wrote, should be keeping firearms out of the hands of criminals, not limiting the ability of citizens to defend themselves.
In the final section of his brief, Michel added a concise legal summary that anticipated the 5-4 majority opinion in Heller that Justice Antonin Scalia would write. Not only do handgun bans violate the original intent of the Second Amendment, he argued, but so do any laws that completely prohibit ownership of firearms. As such, they need not be evaluated under either strict or intermediate judicial scrutiny, the traditional standards for testing the validity of legislation that affects constitutional rights.
Apparently, Scalia agreed. "[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table," the justice concluded. "These include the absolute prohibition of handguns held and used for self-defense in the home." (District of Columbia v. Heller, 554 U.S. 570, 636 (2008).)
The historical underpinnings of Scalia's opinion are still passionately debated. Jack N. Rakove, a professor of history and political science at Stanford University, calls the opinion an example of shoddy and superficial "law-office history." Rakove, who submitted an amicus brief signed by Carl T. Bogus of the Roger Williams University School of Law in Rhode Island, argues that debates by the Framers clearly show the Second Amendment was ratified to protect gun ownership only in the service of state militias, which the anti-Federalists feared might be outlawed by the nation's new central government.
Other scholars, such as UCLA's Winkler, take a middle view, contending that Scalia botched the issue of original intent but nevertheless calling his decision warranted. "Nearly every state has a provision in its constitution protecting gun ownership," Winkler notes. "Americans have always had the right to keep and bear arms as a matter of state law." In his view, Heller may not be in accord with an originalist jurisprudential theory, but it illustrates evolving standards under a "living Constitution."
Correct or not, Heller is the law. Still, the majority opinion did less to resolve the scope of individual gun rights than many expected. Scalia cautioned, as Michel points out, that nothing in the court's ruling "should be taken to cast doubt on long-standing 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." In footnote 26, Scalia noted, such regulatory measures are "presumptively lawful." (District of Columbia v. Heller, 554 U.S. at 627 n. 26 (2008).)
"Post-Heller," Michel says, "the race was on to clarify exactly what Scalia meant."
The very day Heller was decided, the SAF and Gura filed a new case on behalf of a 74-year-old retired maintenance worker from Chicago named Otis McDonald. The plaintiff was prohibited from buying and registering a handgun for self-protection by a city ordinance precluding registration of any handguns bought after 1982. The SAF provided funding for the suit and also joined the litigation as a named plaintiff, along with the Illinois State Rifle Association, the NRA's state affiliate. (McDonald v. City of Chicago, No. 08-CV-3645 (N.D. Ill. filed June 26, 2008).) The legal question presented was whether the Second Amendment right of individual ownership extends to the states, either by way of the Fourteenth Amendment's due process clause or its privileges or immunities clause.
At the same time, the NRA filed challenges under its own name to the Chicago ordinance and to three similar ones passed in nearby suburbs. When the McDonald and NRA suits reached the Seventh Circuit Court of Appeals, they were consolidated - and then dismissed in 2009 on the basis of prior Supreme Court precedents that declined to apply the Second Amendment to the states. (See NRA v. City of Chicago, 567 F.3d 856 (7th Cir. 2009).)
Both the SAF and NRA petitioned for certiorari. But only the SAF explicitly asked the Supreme Court, in McDonald, to overturn the Slaughterhouse Cases (83 U.S. 36 (1873)), which for well over a century had severely limited application of the Fourteenth Amendment's privileges or immunities clause to the states. If the Slaughterhouse Cases were disapproved, the foundation argued, gun ownership could be protected as a substantive right - a privilege or immunity - enjoyed by all citizens that no state or government entity could ever undermine through legislation.
The Court granted review of only the SAF petition, written by Gura and Chicago-area litigator David G. Sigale - although the NRA was admitted as a party in the case. Liberals outside the gun-rights arena took notice of the foundation's legal arguments, some reacting favorably to the breadth of their ramifications. As the New York Times posited in a May 2010 editorial, if the high court accepted SAF's contention regarding the privilege or immunity clause, it could "open the door" to protecting other individual rights as well.
But before the matter was set for oral argument, the NRA filed a motion asking that Gura's 30-minute podium time be divided to permit former Solicitor General Clement - who had represented the federal government in Heller - to argue on its behalf.
The request for argument time was necessary, Michel says, because the NRA believed that it alone had the correct legal approach to ensure victory - and that the due process clause would be key. He again drafted an amicus brief, this time on behalf of 34 California district attorneys and other parties.
The Court granted the NRA's request for a joint appearance. Three months later Justice Alito - writing for another fractured 5-4 majority - reversed the Seventh Circuit's ruling, holding that the Second Amendment applies to the states on the basis of the due process clause. (McDonald v. City of Chicago, 561 U.S. 742 (2010).) Only Justice Clarence Thomas supported overturning the Slaughterhouse Cases. (See McDonald, 561 U.S. at 805-859 (Thomas, J. concurring).)
To this day, Gura resents the NRA's intervention. "We raised both due process and privileges or immunities arguments in our case," he says. "And we used both arguments to win."
Ilya Shapiro, the editor-in-chief of the Cato Institute's annual Supreme Court review, went even further. In a January 2010 post on Cato's website, he termed the NRA's motion to share argument time in McDonald a "facial slap" at Gura's abilities. "Sadly," Shapiro charged, "the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners."
SAF's Alan Gottlieb feels much the same way: "The NRA may pick up the big names to represent it in litigation," he says. "But big names don't necessarily do a lot in the courtroom."
Competition between the SAF and the NRA continues in court filings around the country. Even before the McDonald ruling, both organizations had set their sights on California's complex state procedures for issuing concealed-carry weapons permits. In May 2009 the SAF and Gura, joined by the Roseville-based Calguns Foundation, filed Richards, the federal suit seeking to overturn the Yolo County permitting process. The following April Michel associated into the Peruta litigation to challenge the permitting process in San Diego County. Since then, the cases have followed parallel tracks.
In general, California law prohibits civilians from carrying firearms, whether openly or concealed, loaded or unloaded (see Cal. Penal Code §§ 25400, 25850, 26350). But permits to carry concealed weapons are available to applicants who have completed an approved course in gun safety and training, and who can demonstrate "good moral character" (generally meaning no criminal convictions) and "good cause." California law delegates to each city and county the power to adopt written policies governing the issuance of permits; these are implemented either by municipal police chiefs or by county sheriffs (Cal. Penal Code §§ 26150, 26155).
Both Richards and Peruta disputed the good-cause component of the regulations, as each jurisdiction had refused to issue permits to otherwise qualified applicants who could not show a special need beyond general self-defense. Both cases were dismissed by the district court, and both were argued before the same three-judge Ninth Circuit panel on December 6, 2012. Gura represented the Richards plaintiffs. Clement, once again called in by the NRA, worked with Michel in Peruta. A third similar lawsuit from Hawaii also was argued that day. (See Baker v. Kealoha, No. 12-16258.)
Even in Peruta, however, the SAF has maintained a presence. In December, Gura filed an amicus brief opposing en banc review, but also arguing that Richards would be a better vehicle, should the Court be so inclined.
What comes next is up to the Ninth Circuit. Regardless, Michel says he's in the gun-rights battle for the long haul. He has plenty of other Second Amendment cases on his docket, and he looks forward to the possibility of taking Peruta to the Supreme Court, if necessary. He regards defending American citizens' right to keep and bear arms as a sacred calling, not unlike today's gay marriage movement or in some respects the civil rights struggles of the 1950s and 1960s. The stakes, as he sees them, are similar, requiring an all-out commitment.
"No matter what groups like the Brady Center say about wanting 'sensible gun regulations,' " Michel insists, the "end game is really about 'gun grabbing' and banning the civilian population from owning any guns. So whatever happens, I'll still be here."
Bill Blum is a retired Los Angeles administrative law judge, novelist, and a contributing writer for California Lawyer.
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