Ninth Circuit Panel Gives Thumbs Up to Suit Challenging Arrests Under L.A.’s Pre-Bruen Carry Laws

A three-judge panel on the Ninth Circuit Court of Appeals has revived a lawsuit filed by three men who were arrested and convicted for carrying without a concealed carry permit in Los Angeles, at a time when the city was denying virtually everyone who bothered to apply unless they were cops or judges. 

A U.S. District Court judge originally granted L.A.’s request to dismiss the lawsuit filed by Tennessee resident Garry Matthews and Los Angeles residents Dominic Ross Hunn and Jamar Hearns, holding that the Bruen didn’t  create a constitutional right to publicly carry a firearm without a license. According to the judge, the plaintiffs argued that, because L.A.’s  “good cause” requirement is now unconstitutional following Bruen, “they were permitted to disregard California’s licensing requirement completely.” 

The Ninth Circuit panel, on the other hand, held that the men make a compelling argument… though in one case, the argument didn’t come in a timely manner. 

Appellants have standing pursuant to Article III of the United States Constitution. They plausibly allege that they suffered a concrete injury when they were arrested and detained, that the cause of their injuries was Los Angeles’s licensing policy and its enforcement of state law, and that their injuries can be redressed through the requested relief. Moreover, a plaintiff need not apply for a benefit before filing suit if doing so would be futile.

While Los Angeles and California have changed their carry laws since the men were arrested, the panel looked at the “may issue” laws that were in place that led to the gun owners being charged. As they point out, “Hunn and Hearns plausibly allege that when they were arrested, Los Angeles issued CCW licenses only to judges and law enforcement officers (referred to herein as a “no-issue” policy).”

Under Bruen, Los Angeles’s no-issue policy is unconstitutional. The operative complaint plausibly alleges that Hunn and Hearns would have obtained CCW licenses if Los Angeles had a constitutional policy. If Hunn and Hearns had CCW licenses, they would not have been liable under the California criminal statutes which were the bases for their arrest. In other words, the complaint plausibly alleges that if Los Angeles had a constitutional shall-issue licensing regime, under which persons could obtain CCW licenses for the purpose of general self-defense, Hunn and Hearns would have had such licenses, and the officers would have lacked probable cause to arrest them. Accordingly, Hunn and Hearns adequately allege that Los Angeles’s no-issue policy caused their arrests.

L.A.’s argument was essentially that, because Hunn and Hearns never applied for a permit that they knew they wouldn’t be granted, they had no valid claim that their Second Amendment rights were violated when they were arrested for carrying without a permit. That’s a nice Catch-22 for Los Angeles, or at least it would have been if the panel bought what the city was selling, but instead the judges rightfully concluded that since there was essentially no way for the plaintiffs to have complied with L.A.’s carry laws, they have a valid claim that their right to bear arms was violated by the city.  

Unfortunately for Garry Matthews, who was the third plaintiff in the lawsuit, the panel concluded that Matthews needed to have filed suit earlier in order for his claim to be heard. 

The district court properly dismissed Matthews’s Second and Fourteenth Amendment claims, which are barred by the applicable two-year limitations period. Matthews’s claims accrued when he was arrested on September 27,2019, and he did not sue until May 3, 2022, more than two and half years after his claims accrued. Contrary to Matthews’s argument, his claims were not tolled until the dismissal of his criminal prosecution under the continuing tort doctrine, because a single incident, i.e., Matthews’s arrest, was the cause of the relevant harm.

It’s a shame that Matthews’ claim was deemed untimely, because he also raised a Fourteenth Amendment argument based on the fact that he had a valid Tennessee carry license at the time of his arrest. Not only did Los Angeles not issue permits at the time of his arrest, but the state refused (and refuses) to recognize any carry licenses issued by other states too. At the time of Matthews’ arrest non-residents couldn’t apply for a California permit either, so there really was no way for him to have exercised his right to bear arms without violating California law. 

That particular issue will likely to have to wait for another lawsuit, as will the issue of L.A.’s lengthy wait times in processing carry applications. Should someone be able to legally carry if they’ve filed the paperwork but L.A. County or the city of Los Angeles has gone longer than the 120 days given to them by the state to approve or deny applications? I’d say “yes”, but then, I don’t think you should need a permission slip from the state to exercise your Second Amendment rights to begin with.  

Editor’s Note: It’s great to see federal judges recognize that the Second Amendment isn’t a second class right, but all too often these unelected judges are still standing in the way of our right to keep and bear arms. 

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