The Calguns Foundation fights for Second Amendment rights in California and have been a leading advocate on behalf of Jon Birdt in his lawsuit against the tyrannical San Bernardino County Sheriff’s Office for refusal to issue a conceal-carry permit. On September 3, United States Magistrate Judge made recommendations to US District Court.
On February 26, 2013, the San Bernardino County Sheriff’s Department denied the application of Plaintiff Jonathan Birdt for a concealed weapon license without providing any statutory reason for the denial. Eventually, the Sheriff’s Department disclosed that it denied Plaintiff a license because he failed to meet the “good moral character” requirement of California Penal Code § 26150 for obtaining a license. In this pro se civil rights action under 42 U.S.C. § 1983, Plaintiff contends that denial of his application for a concealed weapon permit violates his Second Amendment right to carry a gun outside the home for self-defense, and seeks an order mandating Sheriff McMahon to issue the requested license.
Thus, this case presents the following issues for resolution: (1) whether “good moral character” is a valid constitutional limitation on Plaintiff’s right to carry a gun outside the home for self-defense, (2) whether the denial of Plaintiff’s application for lack of “good moral character” on the specific facts of this case was proper, and (3) whether the Sheriff’s Department has the discretion to deny Plaintiff’s application for a license even if the
requirements of § 26150 have been met.
IT, THEREFORE, IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) denying Sheriff McMahon’s Motion to Dismiss; (3) denying Sheriff McMahon’s request for summary judgment without prejudice to its renewal after he has an opportunity to exercise his discretion whether to deny a license to Plaintiff on grounds other than lack of good moral character; and (4) denying Plaintiff’s Motion for Summary Judgment and request for an order requiring Sheriff McMahon to issue a license without prejudice to reconsideration after Sheriff McMahon exercises his discretion to grant or deny same.
You can read the entire Magistrate proposal and District Court acceptance here.
The District Court accepted all recommendations proposed:
Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records on file, and the Report and Recommendation of the United States Magistrate Judge. The Court accepts the findings and recommendations of the Magistrate Judge.
IT IS HEREBY ORDERED that: (1) Sheriff McMahon’s Motion to Dismiss is DENIED; (2) Sheriff McMahon’s request for summary judgment is DENIED without prejudice to its renewal after he has an opportunity to exercise his discretion whether to deny a license to Plaintiff on grounds other than lack of good moral character; and (3) Plaintiff’s Motion for Summary Judgment and request for an order requiring Sheriff McMahon to issue a license is DENIED without prejudice to reconsideration after Sheriff McMahon exercises his discretion to grant or deny same.
The Calguns Foundation issued a press release on the Sheriff Office’s failure to fix it’s obstructionist practices:
Earlier today, The Calguns Foundation sent San Bernardino County Sheriff John McMahon a letter demanding that he revise the Sheriff-Coroner Department’s handgun carry license policies.
In reviewing recent filings for the federal civil rights lawsuit of Birdt v. San Bernardino Sheriff’s Department, “it was apparent that the Sheriff has a lot of work to do” in order to comply with the law, noted the Foundation’s Executive Director, Brandon Combs.
“Once again, we see a jurisdiction’s highest law enforcement officer thumb their nose at fundamental Constitutional rights and the California Legislature,” he added. “It’s sad to think that this really just boils down to the Sheriff’s blatant distrust of his own constituents and a lack of respect for fundamental civil rights.”
But the issues go deeper than differences of opinion, Combs says. He pointed to one part of the federal magistrate judge’s recommendation, in which the Court found that
“[Birdt’s] application file also reveals that an incident occurred on January 29, 2013 when he came into the Sheriff’s office and tried to file a form from the California Department of Justice website which he demanded to leave at the counter without all the required documentation. He was told that when he had all the correct documentation he should call the number in the Sheriff’s packet for an interview date. The Sheriff’s office does not accept applications without an appointment. He left the office ‘irate.’ Birdt subsequently sent a January 29, 2013 letter with his application and a check but the Sheriff’s office does not accept applications by mail nor does it accept checks. The background investigation report concludes, ‘Birdt not only have an aggressive defiant behavior…he failed to follow directions.’”
While the County’s claim that Birdt was “irate” has yet to be proven in court, it simply doesn’t matter, said the Foundation in its letter. “Given the facts of [the sheriff’s] policies and practices as detailed in the proposed order, an applicant would reasonably become frustrated that their rights are being denied through improper administrative roadblocks…To the extent that Mr. Birdt expressed his displeasure about such policies and practices (without violating the law, such as by interfering with the duties of a peace officer), it seems to us that such conduct would be rationally expected and protected under the First Amendment.”
“If some government official was jerking me around like Sheriff McMahon and his staff apparently did to Birdt, I’d be a bit ‘irate,’ myself,” quipped Combs.
The Foundation asked that the sheriff correct the disputed policies and practices within 30 days, noting that its legal counsel is “ready and willing to assist [the sheriff]” in the efforts and that it would prefer to avoid litigation, if possible.
“We’re cautiously optimistic that Sheriff McMahon will take the high road and save his county’s taxpayers from the costs of fighting about these issues in court,” Combs said, “but if he doesn’t, that’s exactly what we’re prepared to do next month.”
A copy of the Foundation’s letter can be viewed at http://www.calgunsfoundation.org/2014/09/cgf-to-san-bernardino-sheriff-fix-your-handgun-license-policy.
Law-abiding San Bernardino County residents who wish to apply for a handgun carry license may volunteer to report their experiences to Calguns at http://www.calgunsfoundation.org/get-help/california-carry-license-ltc-ccw-issue-reporting.
Gun owners who wish to support carry license compliance efforts and related litigation can make a tax-deductible donation to The Calguns Foundation at https://www.calgunsfoundation.org/donate.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to defend and advance Second Amendment and related civil rights.