Getting a TRO/PI against CA open carry ban: it’s complicated

• Posted on 17 December 2018
• By Write Winger
• 0

Just like in the original three judge panel of Peruta that stated concealed carry permits must be issued in a “shall issue” manner, no sheriff that was stingy issuing CCWs was going to start issuing them because they were going to wait to see what would be decided in a rehearing of the case en banc.

There was a lot of fanfare about Mark Baird of SOJ51 filing a lawsuit to block CA from enforcing its ban on open carry. Some people are excited, others are angry, others are more pragmatic. I hope to break it down into more realistic expectations of how this will play out.

First, some background. The 9th Circuit in a three judge panel originally decided in the case Peruta v. Gore that if a state has banned open carry but allows concealed carry, that it must allow someone who is not prohibited from carrying a firearm to be issued a concealed carry permit (i.e. shall issue), because the 2A protects some form of carry outside the home.

The case was reheard by an eleven judge “en banc” panel, and they overturned that decision, declaring that the 2A does not protect a right to carry a concealed firearm in public.

Then, a three judge panel of the 9th Circuit decided in the case Young v. Hawaii that since the 2A doesn’t protect concealed carry, that it must protect the right to open carry. Currently, the government of Hawaii is petitioning to have this case reheard en banc, but as of now it hasn’t made the decision to rehear.

As previously stated, in California, open carry of firearms is completely banned. Hawaii and California are both in the 9th Circuit, and any decision from the 9th is binding on all federal courts in this district. For the 9th to declare that open carry is a protected right, it obviously means then that California’s ban on open carry is unconstitutional.

Theoretically, if someone was to go to federal court in California waiving a copy of the 9th’s decision in Young, the court would be required to issue a temporary restraining order or preliminary injunction against California to prevent the enforcing its ban on open carry.

However...

Just like in the original three judge panel of Peruta that stated concealed carry permits must be issued in a “shall issue” manner, no sheriff that was stingy issuing CCWs was going to start issuing them because they were going to wait to see what would be decided in a rehearing of the case en banc. So they waited. Then, the en banc panel overturned that decision. A similar scenario can go for Young and open carry.

I am not a lawyer, but I do try to get as much information from them as I can to provide a layman’s summary of things. After talking to a few, here’s the reason this might not go as I’d like it to.

TRO/PI are what they call an “extraordinary remedy”, they’re a big deal if they’re granted, and it’s up to the judge whether or not to grant one, even if there is precedent that says Baird must win at the merits stage of his case.

There is a four factor test that a judge uses to balance whether or not to grant a TRO/PI:

1) the threat that the moving party will suffer irreparable injury if the injunction is not granted

2) the moving party’s likelihood of success on the merits

3) the possible hardships to the moving party if the injunction is not granted outweigh the possible harm to the defendant if the injunction is granted

4) granting the injunction will be in the public interest

Some say that these four factors have been met, and they may have been. But it’s more likely that a judge won’t issue a TRO/PI that will upset the social, legal, and political apple cart as to suddenly “allow” everyone in California to open carry, then get a different decision from the en banc panel overturning the three judge panel by stating there is no right to open carry, thus re-banning open carry - not only pissing everyone off, but confusing those who don’t pay attention to the changes in law or decisions. They prefer stability over protecting rights, and they will likely wait to see if the 9th takes this en banc, and then, if they take it, see what the decision will be.

Don’t get me wrong, I’d love to see Baird succeed. I’m glad someone will at least try it from this angle, and I’ll be busting out the popcorn to see what happens. But I’m an eternal pessimist, often times a realist, and I can’t be let down if I don’t expect the world.

We’ll likely all just have to wait and see if the 9th take this en banc. If they don’t and Young stands, there are already challenges to California’s open carry ban at the 9th that are waiting to be decided.