It’s a busy time to be a gun rights attorney in a state with some of the most restrictive gun laws in the country.
Dozens of gun battles are being fought in California courts right now. Many involve the Southern California law firm led by Chuck Michel, whom opponents at the San Francisco-based Law Center to Prevent Gun Violence call the “NRA’s star litigator.”
Michel, 56, has spent most of the last two decades defending gun owners. He’s the author of “California Gun Laws,” a comprehensive guide to the state’s myriad laws aimed at gun owners. A lengthy profile of Michel in February’s issue of California Lawyer magazine, called “California’s Triggerman,” describes the rare single-shot pistol hanging on the wall behind his desk, along with a Glock handgun and antique Texas Ranger badges.
Here’s a rundown of some of the active cases Michel is working on, starting with the one he’s best known for outside the state.
- Rehearing of concealed carry case: Peruta v. County of San Diego
Last week, the 9th Circuit U.S. Court of Appeals announced it would rehear a concealed gun carry case that pits an independent journalist against the San Diego County sheriff. When guns rights activist and freelance videographer Ed Peruta was denied the ability to carry his .45-caliber pistol in public, he sued the sheriff on the grounds that the Second Amendment guaranteed him the right to a gun for self-defense while on assignment.
Early last year, a three-judge panel agreed, ruling 2-1 that the county violated applicants’ Second Amendment rights by requiring them to demonstrate good cause to carry a gun beyond citing self-defense.
The court will hear oral arguments in the Peruta case the week of June 15. The court also announced that it will rehear Richards v. Prieto, which focuses on similar concealed carry requirements in Yolo County.
California is a “may issue” state, meaning that county law enforcement determines who may carry handguns. In addition to demonstrating good cause, under state law, applicants must establish “good moral character.” Concealed carry permit applications in many parts of the state have increased in the year since the Peruta case was decided, with some counties bracing themselves for more.
Michel represents Peruta – who’s no stranger to litigation himself. Michel told Reveal that he expects whoever loses at the 9th Circuit to appeal to the U.S. Supreme Court.
If the Peruta case gets that far, it will be the most important Second Amendment-related case heard by the Supreme Court since the landmark 2008 ruling in District of Columbia v. Heller, which held that people have a right to own a gun to defend themselves at home.
It remains unclear who Michel will be up against in the Peruta hearing. California Attorney General Kamala Harris first asked the court to review its decision last year, but the court hasn’t formally appointed Harris’ office to represent San Diego County. Michel said he expects that to happen soon.
The Peruta case took center stage at a Second Amendment policy and litigation dinner in Sacramento on Sunday. The event, sponsored by the gun rights groups Calguns Foundation and Firearms Policy Coalition, drew more than 100 people to hear a panel of Second Amendment lawyers discuss trends in gun policy.
“There’s no doubt that Heller was groundbreaking,” said Bradley Benbrook, one of the attorneys who fielded questions from gun owners. “But it left a lot open for debate.”
The Peruta case stands in stark contrast to decisions by appellate courts in other parts of the country, which have largely upheld law enforcement discretion in permitting. Benbrook said he hopes the case will be a catalyst for more consistent concealed carry laws nationally.
“I’d like to think the inequality of rights would capture the attention of the Supreme Court,” Benbrook said. “But we just don’t know.”
In addition to the potential national implications of the Peruta case, a handful of similar lawsuits in other California counties are on standby, stayed pending the outcome of the Peruta case.
- The fight over California’s Dealer’s Record of Sale fee
Michel’s office is appealing a recent decision by a federal judge who ruled that it is legal for the California Department of Justice to charge gun buyers a $19 fee to cover a mandatory background check and transfer of the gun.
Michel represents a Fresno gun shop and a handful of people who bought guns from the shop after paying the fee. He said it costs the state $8 to conduct a background check. A portion of the fee funds the state’s program to take guns away from prohibited owners, including the mentally ill, an initiative with which Harris’ office has struggled to keep up.
Michel argues in his appeal that using the fee to fund that program violates the Second Amendment.
“The state can adopt this program, but they shouldn’t be financing it with the fee,” Michel said. “It’s like charging everyone who buys a prescription an extra $10 to fight Colombian drug cartels.”
In its defense, the state has argued that “there is nothing unconstitutional about imposing a fee on the exercise of a constitutional right when the fee is designed to defray the broad administrative costs of regulating the protected activity.”
- California’s new Firearms Safety Certificate program
Signed into law by Gov. Jerry Brown in 2013, the Firearms Safety Certificate program replaces the Handgun Safety Certificate program – a basic test that prospective buyers are required to pass before purchasing a gun. The program starting this year was expanded to include rifles and shotguns as well as handguns.
Earlier this month, Michel filed a letter of opposition with the state on behalf of the National Rifle Association and California Rifle and Pistol Association, taking issue with administrative changes to the program.
In particular, Michel argues that the safety program’s requirements are overly burdensome and an “administrative headache” for dealers to meet. Whereas gun store owners previously may have held safety certifications for only a single category of guns, they now must train employees to teach safe handling instructions for both long guns and handguns. Payments to complete the safety program now must be made via credit card, a payment method Michel said not all gun stores accept.
Michel also contends that the state Department of Justice didn’t give gun dealers enough time to comment on the changes before they took effect. Typically, the public is given 45 days to comment on such changes, but because the Justice Department introduced these as emergency regulations, that time was reduced to five days. More than 9,000 comments were submitted during the five-day period, which Michel said indicates substantial interest in the proposed changes.
“The DOJ never bothered to get real public comment,” Michel said. “Instead, they just unilaterally adopted rules that they dropped on people days before they took effect. It’s a fiasco.”
Some gun dealers have started contracting out the safety certificate program, Michel said, because they don’t have employees certified to administer safety tests for handguns, rifles and shotguns, or because they haven’t updated their computer systems to meet the requirements. The Justice Department has until August to either adopt the emergency changes or open a formal public hearing period.