[00:00:09] Speaker 00:
morning honor my name is william clayborne i'm here on behalf of appellants plaintiffs below uh... would like to reserve three minutes for a bottle please watch the clock thank you partner please watch the clock yes your honor my clients may it please the court my clients were law-abiding members of the people who were engaging in the constitutionally

[00:00:39] Speaker 00:
protected conduct of carrying a handgun in public for self-defense.

[00:00:47] Speaker 00:
Defendants injured my clients by implementing, exercising the discretion afforded them under a state regulatory scheme to implement an unconstitutional policy of imposing a total ban

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on the carriage of handguns in public for the purpose of self-defense by once again exercising the discretion afforded them by a permissive state regulatory scheme to impose a total ban on the issuance

[00:01:34] Speaker 00:
of CCWs.

[00:01:36] Speaker 04:
Can you tie the injury in this case to the county where this is a state law?

[00:01:43] Speaker 00:
I beg your pardon?

[00:01:43] Speaker 04:
How can you tie the injury that you have asserted for your clients to the county, the defendant in this case, as opposed to the state because this is a state law?

[00:01:52] Speaker 00:
Well there are, the defendants are the city of Los Angeles and the state statute was permissive in several respects.

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The state regulatory scheme had two parts.

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It had an enforcement arm and it had a licensing provision.

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And recently in some dissents filed from a denial of cert in Wilson v. Hawaii, Justice Gorsuch

[00:02:23] Speaker 00:
pointed out that in this type of situation, the enforcement provisions and the licensing provisions fit together like a hand in a glove.

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The licensing provision was set up by the state.

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However, the state did not issue any licenses.

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The state left that up to each

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police board or police chief or sheriff.

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As a matter of fact, the complaint points out that Ventura County

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interpret the sheriff interpreted the licensing provision to allow for the issuance of licenses and the court can take judicial notice that at the time of the incidents in this case there were about twenty jurisdictions which had interpreted the good cause provision of the statute to allow for issuance of

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licenses for the purpose merely the standard of using the handgun in public for self-defense.

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So the state did not tell the board and the city and the police department and the chief not to issue licenses.

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That was purely discretionary within the board

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and the chief.

[00:03:55] Speaker 05:
You're, if I believe, argues that LA City had effectively a no-issue regime.

[00:04:04] Speaker 05:
What's the evidence for that?

[00:04:06] Speaker 00:
Well, some of the things that I pointed out in the complaint were the city had passed an ordinance

[00:04:16] Speaker 00:
Saying that the board and actually the board the authority to issue licenses resided in the board that delegation was made to the board the city had issued an ordinance saying that Issuing licenses could be issued only if the board okayed them and it was the standard was it was a privilege to

[00:04:41] Speaker 00:
Not a right.

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So that's one point.

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That said about paragraph 109.

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I'm not exactly sure.

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The city had adopted an ordinance which characterized the issuance of licenses as a privilege which resided in the board to say yea or nay.

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Another example is the state statutory scheme allows for carriage of a handgun without a license

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if a person is in immediate danger.

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The city more or less overrode that by passing an ordinance which said that nobody can fire a gun in the city without a CCW.

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So the city has overridden a more expansive provision in the state statute.

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The other major point is

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The state doesn't issue licenses.

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The state granted that authority to police boards, police chiefs, and sheriffs.

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And in this case, the board and the city acting through its city council and the chief had this no issue policy.

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That's a fundamental violation of a Second Amendment right which actually predates adoption of the Second Amendment.

[00:06:12] Speaker 00:
The right to carry a handgun in public for self-defense is a right which predates adoption of the Second Amendment.

[00:06:22] Speaker 04:
So... Can I jump in here for a second?

[00:06:25] Speaker 04:
You're relying on the futility doctrine to say that they wouldn't have ever gotten a license, even if they had tried to.

[00:06:30] Speaker 04:
Does that work where, I'm not aware that the record establishes that the plaintiffs knew about LA's requirements, and that was the reason that they didn't try to get a permit.

[00:06:42] Speaker 04:
So I'm just wondering, for the futility doctrine to work, do the plaintiffs have to know that it was futile or not?

[00:06:49] Speaker 00:
For the futility doctrine,

[00:06:53] Speaker 00:
Yes.

[00:06:53] Speaker 00:
However, and there are other futility... But then let me stop you for one second.

[00:06:58] Speaker 04:
If the answer is yes, is there information in the record to say that your plaintiffs, these plaintiffs knew about LA's licensing requirement?

[00:07:06] Speaker 00:
Yes, Your Honor.

[00:07:07] Speaker 00:
Constructive knowledge, because there are other cases in the Ninth Circuit which say, and I cited them in my brief, which say if it's obvious from the face of the licensing provisions,

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that a person would not comply, then the person has no obligation to submit the license.

[00:07:30] Speaker 00:
That's the futility doctrine here.

[00:07:33] Speaker 00:
Based on the chief's proclamations, it's obvious he's never going to issue licenses.

[00:07:43] Speaker 04:
Okay, but you're relying on constructive knowledge.

[00:07:45] Speaker 04:
There's nothing in the record to show actual knowledge.

[00:07:48] Speaker 00:
I actually

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I'm not merely relying on the futility doctrine.

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I'm relying on Shuttlesworth.

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But with respect to the futility doctrine, I...

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plead in the complaint several times that there was no way plaintiffs would ever get a license from the chief.

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And I talk about how the chief set them up in a catch-22.

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And so I think that establishes the knowledge that everybody knew, all the players knew, beyond constructive knowledge.

[00:08:24] Speaker 04:
One of your plaintiffs is from Tennessee.

[00:08:25] Speaker 04:
So how is that person going to know about this?

[00:08:27] Speaker 04:
Because my understanding is that person was just visiting Los Angeles.

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Because he intended to live in Los Angeles, and everybody knows it's impossible to get a license in the city of Los Angeles.

[00:08:46] Speaker 04:
For example... I still think you've got to be relying on constructive knowledge there, right?

[00:08:50] Speaker 04:
I mean, I come to Los Angeles fairly frequently for this job.

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I have no idea what the rules are for carrying a concealed handgun.

[00:08:57] Speaker 00:
Well, what I would say to that is I'm not sure, but I think it differs depending on whether someone is a member of the people that carries a gun.

[00:09:11] Speaker 05:
So the other thing is, oh, I'm sorry.

[00:09:13] Speaker 05:
We're at the motion to dismiss stage.

[00:09:14] Speaker 05:
So you're saying the complaint itself alleged sufficient to show that it was futile to attempt to get a permit.

[00:09:24] Speaker 05:
Is that what you're saying?

[00:09:26] Speaker 00:
Yes, I am, Your Honor.

[00:09:27] Speaker 00:
I'm also saying I had two theories on this.

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One was the futility doctrine.

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The other doctrine is the Supreme Court has said as far back as Shuttlesworth that if you have a regulatory scheme and the licensing provision

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is on its face unconstitutional for one reason or another.

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The people do not have to comply with the regulatory scheme.

[00:10:02] Speaker 00:
This Ninth Circuit has said this in a couple of cases without inquiring into whether the plaintiffs knew, had actual knowledge of the licensing provision.

[00:10:15] Speaker 00:
One of those cases is gross.

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In that case, a doctor

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went to a park and protested the arrival of some military ships and naval ships carrying nuclear weapons.

[00:10:28] Speaker 00:
He did that without getting a license to protest in the park.

[00:10:34] Speaker 00:
He was arrested and he was able to sue the municipality because the licensing provision was unconstitutional.

[00:10:42] Speaker 00:
There was no inquiry into whether

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the doctor had actual knowledge of the defects and the licensing provision.

[00:10:51] Speaker 00:
Another case is outdoor desert signs.

[00:10:56] Speaker 00:
What happened there was an advertising, outdoor advertising company built some signs without getting a license and then was the subject of an enforcement action and they then brought

[00:11:12] Speaker 00:
Lawsuit in the night in the district court and the Ninth Circuit held that they suffered standing injury that there was a article 3 case in controversy because the Well really not talking about standing here in the article 3 sense your clients have alleged injuries and

[00:11:35] Speaker 01:
I think we're here talking, trying to figure out to what extent administrative exhaustion is required.

[00:11:42] Speaker 01:
And we're at the stage of motion to dismiss.

[00:11:44] Speaker 01:
So I don't want to pretend we've got evidence to look at, but your complaint actually doesn't allege that the city had a no issue policy.

[00:11:54] Speaker 01:
It was a good cause policy.

[00:11:56] Speaker 01:
Your complaint quotes the standard for good cause, which I acknowledge seems restrictive, but

[00:12:05] Speaker 01:
How do we know that your clients wouldn't have qualified for good cause if there's never been an application to inquire?

[00:12:13] Speaker 00:
Two reasons, Your Honor.

[00:12:15] Speaker 00:
That's the defendant's argument that plaintiffs are challenging the good clause provision of the statute.

[00:12:23] Speaker 00:
There are allegations in the complaint in which we make very clear that we are challenging the city defendants

[00:12:35] Speaker 00:
gun control policy in Toto.

[00:12:38] Speaker 00:
That's the phrase we use in Toto.

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And we say they took the discretion afforded them under the statute and they just virtually never, ever issued.

[00:12:47] Speaker 01:
Only that's not what your complaint actually says.

[00:12:49] Speaker 01:
Your complaint says that permits will be issued to people who've satisfied good cause in the eyes of the issuing authority.

[00:12:59] Speaker 01:
And so the question becomes, can we take as a given?

[00:13:03] Speaker 01:
Your clients wouldn't have satisfied that.

[00:13:05] Speaker 00:
If you're referring Judge Clifton to the allegations that perhaps the standard would have allowed issuance of a license to judges and prosecutors, even in Hella where the court struck down a total ban, the court noted that some people under the total ban qualified

[00:13:32] Speaker 01:
And all I'm asking is how do we know that your clients didn't qualify?

[00:13:35] Speaker 01:
They're seeking damages.

[00:13:37] Speaker 01:
They're seeking monetary damages on the premise they wouldn't have qualified, but they didn't ask.

[00:13:43] Speaker 00:
We allege, A, that the city defendants adopted a total ban on the issuance of... No, that's not what you allege.

[00:13:56] Speaker 01:
Because your complaint includes this good cause exception.

[00:14:00] Speaker 01:
And my question is,

[00:14:02] Speaker 01:
How can we take as a given that your client wouldn't have qualified for an issuance of a permit under the policy being implemented by whoever it was making the decisions?

[00:14:14] Speaker 00:
I'm not going to back off my position, but taking your argument there, the complaint reproduces the language that the chief put on the chief's website, and the chief defined the chief's

[00:14:33] Speaker 00:
Definition of good cause every licensing issuing entity was entitled to come up with their own definition of good cause and the chief Definition of good cause was basically the definition that was struck down in Bruin and can you point to the language in the complaint to which you're referring?

[00:14:56] Speaker 00:
Yes, your honor well, it's

[00:15:00] Speaker 00:
I don't have that in my binder.

[00:15:02] Speaker 00:
However, the complaint is the ER 31 and it is approximately

[00:15:14] Speaker 00:
I would say there's a section heading which says we are challenging the entire gun control regime and then in the alternative what we say is if the chief did not exercise the chief's discretion to introduce this across-the-board gun control regime, the chief and the city defendants develop their own.

[00:15:38] Speaker 00:
So we have

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in the alternative there.

[00:15:42] Speaker 00:
But we reproduce roundabout 105 to 109.

[00:15:51] Speaker 05:
I do see at paragraph 94, the city of Los Angeles adopted a no to issue CCW policy to impose a total ban and carriage of handguns outside the home for self-defense.

[00:16:05] Speaker 05:
So are you relying on that?

[00:16:07] Speaker 05:
This is at paragraph 94.

[00:16:08] Speaker 01:
107 has the definition of good as case.

[00:16:14] Speaker 01:
It's good cause, I guess.

[00:16:16] Speaker 00:
So that is a definition which requires a showing of a special need

[00:16:21] Speaker 00:
to carry a handgun.

[00:16:23] Speaker 00:
And that is what the Supreme Court struck down in Bruin.

[00:16:28] Speaker 01:
That statute requires... But this isn't the Bruin case.

[00:16:31] Speaker 01:
This isn't a challenge.

[00:16:32] Speaker 01:
It's an effort by your clients to obtain monetary damages.

[00:16:37] Speaker 01:
And so I think the question is a valid one.

[00:16:39] Speaker 01:
How can we be sure?

[00:16:40] Speaker 01:
And again, this is the stage of a motion to dismiss.

[00:16:43] Speaker 01:
But if your client's never applied, do we take as a given?

[00:16:48] Speaker 01:
Couldn't have been issued?

[00:16:50] Speaker 00:
Well, I think so because the focus in the case should be on what the city defendants did and did not do.

[00:16:59] Speaker 00:
They're the wrongdoers.

[00:17:01] Speaker 01:
But this is a monetary damages case.

[00:17:03] Speaker 01:
It's not an attack on the ordinance or the policy as such.

[00:17:10] Speaker 01:
You're seeking monetary damages and if it's not clear that your clients actually would have been denied the permit, I'm not sure

[00:17:20] Speaker 01:
Why the administrative exhaustion requirement isn't applicable?

[00:17:24] Speaker 00:
Well, we cited the case in our briefs.

[00:17:27] Speaker 00:
It is an immigration case.

[00:17:32] Speaker 00:
And the claimant, plaintiff, whatever, in that case.

[00:17:39] Speaker 01:
I'm not sure the case law from this court on immigration is going to be directly applicable to 1983 action here.

[00:17:50] Speaker 00:
Well, 1983 has no exhaustion of remedies requirement.

[00:17:55] Speaker 01:
No, but to get the damages, if in fact it were the case that your client would have gotten the permit if they'd filled out the form, it's hard to see why they should be entitled to damages because they were not energetic enough to fill out the form.

[00:18:11] Speaker 00:
Well, if I may, our complaint alleges that it's obvious nobody ever would have got a license.

[00:18:20] Speaker 00:
Our complaint also alleges that the city council passed an ordinance saying that the board can issue licenses and it's a privilege, it's not a right.

[00:18:34] Speaker 00:
And also the chief on the website

[00:18:38] Speaker 00:
published the chief's interpretation of the good cause provision.

[00:18:46] Speaker 00:
And it's obvious from a review of the chief's own good cause provision that the issuance of licenses is going to be based on a

[00:19:03] Speaker 00:
showing of a special need, and that is what the Bruin Court struck down.

[00:19:11] Speaker 05:
Do you want to save some time for rebuttal?

[00:19:14] Speaker 00:
I beg your pardon?

[00:19:15] Speaker 00:
Yes, Your Honor.

[00:19:15] Speaker 05:
Do you want to save time for rebuttal?

[00:19:17] Speaker 05:
You're down to 54 seconds.

[00:19:20] Speaker 05:
Thank you.

[00:19:34] Speaker 03:
Good morning, Your Honors, and may it please the Court Assistant as City Attorney, Sean Dabby Jacobs, for the City of Los Angeles.

[00:19:42] Speaker 03:
California law, which plaintiffs do not challenge in this case, does not allow for the open carry of firearms and will only allow someone to have firearms in public if they have a CCW, which was issued by the local public entity where they live, which it's undisputed in this case, as Your Honors recognize,

[00:20:04] Speaker 03:
that they never applied, they never got one.

[00:20:08] Speaker 01:
And if they had applied, what was going to happen?

[00:20:12] Speaker 01:
We don't know.

[00:20:12] Speaker 01:
It's alleged in the complaint that they wouldn't have gotten it because they don't meet the standard of good cause as set out by the, I guess it's the police chief or the department.

[00:20:23] Speaker 03:
Right.

[00:20:24] Speaker 03:
So that good cause in light of Bruin is now invalidated.

[00:20:30] Speaker 03:
We recognize that.

[00:20:31] Speaker 03:
We're not here to say it is still constitutional.

[00:20:36] Speaker 03:
But what the answer is though is that we don't know, we still don't know whether they would have gotten a license even without that.

[00:20:45] Speaker 01:
So does that become an evidence issue?

[00:20:46] Speaker 01:
I mean do they have to prove somehow that they wouldn't have gotten it?

[00:20:50] Speaker 01:
They do allege that they don't think they would have gotten it.

[00:20:54] Speaker 03:
Well, they don't allege that they would have met any of the other licensing requirements.

[00:20:57] Speaker 03:
I mean, the state scheme, which they do not challenge, also says you have to have, you can have a license that, you know, you have firearms training, you're good moral character, you don't have mental health issues.

[00:21:12] Speaker 01:
But that's not what the dismissal by the district court was based on, was it?

[00:21:17] Speaker 01:
I mean, you don't have, you haven't given us evidence or anything we could consider at this stage that they,

[00:21:23] Speaker 01:
wouldn't have satisfied the good moral character or wouldn't have satisfied the firearm training.

[00:21:28] Speaker 01:
This is a stage of a motion to dismiss, so why is that something we're supposed to base a decision on here?

[00:21:37] Speaker 03:
Well, because they don't allege in their complaint that they would have satisfied any of the other requirements.

[00:21:42] Speaker 03:
And on a 12b6 motion, the court can just look at the pleadings and it can affirm on any theory that's

[00:21:50] Speaker 03:
That's correct, even if the district court judge didn't reach that particular issue.

[00:21:55] Speaker 04:
Well, they do allege that LA's policy was actually to not issue any permits except for certain officials.

[00:22:04] Speaker 04:
So what do we do with that allegation?

[00:22:06] Speaker 03:
Well, they base that on the whole good cause issue because as Your Honor's talked about in paragraph 107, the definition of good cause is for that special self-defense need.

[00:22:20] Speaker 03:
Right?

[00:22:21] Speaker 03:
Right.

[00:22:24] Speaker 03:
But they don't challenge it.

[00:22:26] Speaker 03:
And they didn't challenge it.

[00:22:27] Speaker 03:
So they were arrested under a state law, which they do not challenge.

[00:22:34] Speaker 03:
They don't argue that there was not probable cause for their arrest.

[00:22:40] Speaker 03:
So there's no Fourth Amendment violation.

[00:22:42] Speaker 03:
So if there was probable cause for the arrest,

[00:22:47] Speaker 03:
and it's based on a lawful statute, a lawful arrest, now you cannot turn that into a second amendment violation.

[00:22:58] Speaker 01:
Why not?

[00:22:59] Speaker 04:
I'm not tracking that.

[00:23:01] Speaker 01:
I mean 1983 is all about violation of constitutional rights and you've got a constitutional right to bear arms outside the home for self-defense and these individuals arrested for bearing arms outside the home and they say it was for self-defense.

[00:23:16] Speaker 01:
Why isn't that a potential 1983 violation?

[00:23:19] Speaker 01:
It's not proven up yet, but this is a stage of a motion to dismiss.

[00:23:24] Speaker 03:
Because they never, because as your honors recognize, they never challenged it.

[00:23:28] Speaker 03:
This isn't the way that they're challenging it.

[00:23:32] Speaker 03:
They can't wait till they get arrested and say, oh no, now, you know, I don't have a license.

[00:23:38] Speaker 03:
It'd be like if you're driving without a license.

[00:23:41] Speaker 05:
Well, we do allow pre-enforcement, the Supreme Court has allowed pre-enforcement challenges.

[00:23:46] Speaker 03:
Right.

[00:23:46] Speaker 05:
So there's no reason why they, I don't see why they can't challenge the unconstitutional licensing regime even if it hasn't been applied to them.

[00:23:59] Speaker 05:
But here it was applied to them actually, so it's not even a pre-enforcement challenge.

[00:24:03] Speaker 05:
I guess I'm not following you either.

[00:24:05] Speaker 02:
Because they, here, they were,

[00:24:12] Speaker 04:
I think your argument might make sense if this whole scheme didn't give the city the ability to define good cause and to sort of set the parameters for at least some of the conditions to be able to get a permit.

[00:24:24] Speaker 04:
But where the city does have that definitional authority, I come back to I don't understand the argument about why they couldn't make a Second Amendment challenge without bringing a larger challenge to the whole statutory scheme.

[00:24:39] Speaker 03:
Because they weren't arrested for violating a city policy or violating a municipal ordinance.

[00:24:47] Speaker 05:
They were, though, right?

[00:24:48] Speaker 05:
Because the state law says you can't have a weapon unless you have a license that's issued by the local government.

[00:24:59] Speaker 05:
And then the local government, they allege, will not issue a license.

[00:25:04] Speaker 05:
So we have to read all three of those laws together.

[00:25:08] Speaker 03:
Well, but they could have brought a pre-enforcement challenge.

[00:25:10] Speaker 03:
They could have, even if they had never applied for a license.

[00:25:14] Speaker 05:
But here there was enforcement, so they're not in a pre-enforcement situation.

[00:25:20] Speaker 01:
They got arrested.

[00:25:22] Speaker 01:
That's what triggered it.

[00:25:23] Speaker 01:
This isn't the NRA bringing a suit.

[00:25:28] Speaker 01:
I suspect there may be support elsewhere.

[00:25:32] Speaker 01:
They got arrested.

[00:25:34] Speaker 01:
They've suffered an injury.

[00:25:35] Speaker 01:
They alleged they suffered this injury because their constitutional rights were violated.

[00:25:42] Speaker 01:
Why can't they bring that cause of action?

[00:25:45] Speaker 03:
Because they're not challenging the state statute.

[00:25:48] Speaker 01:
Why do they have to challenge the state statute?

[00:25:50] Speaker 01:
It was a statute that turned authority over to make the decision to the local police chief.

[00:25:58] Speaker 01:
Maybe in this case, it was the Board of Police Commissioners.

[00:26:01] Speaker 01:
I don't know.

[00:26:01] Speaker 01:
I mean, L.A.

[00:26:02] Speaker 01:
has structured it in a certain way, and that's fine.

[00:26:04] Speaker 01:
L.A.

[00:26:04] Speaker 01:
has the authority to do that.

[00:26:06] Speaker 01:
But if it was L.A.

[00:26:08] Speaker 01:
that decided to have a policy, we're not going to issue them unless we think they're really necessary.

[00:26:14] Speaker 01:
That is, the judges, law enforcement, people under threat, so forth.

[00:26:19] Speaker 01:
Then these people contend, at the stage of emotion dismissed, they wouldn't have qualified.

[00:26:26] Speaker 01:
Why does that justify dismissal at this stage?

[00:26:30] Speaker 03:
Because they were arrested under state law.

[00:26:37] Speaker 03:
The charge wasn't violating an LAMC code or violating the CCW policy.

[00:26:43] Speaker 03:
They were arrested under... Who were they arrested by?

[00:26:47] Speaker 03:
LAPD.

[00:26:50] Speaker 01:
That's the reason that LAPD is the defendant.

[00:26:56] Speaker 01:
Let's take an easy one.

[00:26:57] Speaker 01:
I'm going to leave aside the limitations issue for a moment.

[00:27:00] Speaker 01:
Mr. Matthews is from Tennessee, so if I understand it, he couldn't have been issued a permit because the permits were limited to residents.

[00:27:08] Speaker 01:
Is that correct?

[00:27:09] Speaker 03:
Right.

[00:27:10] Speaker 01:
How can the state or the city or the arresting officer decide to limit constitutional rights to people who live there?

[00:27:17] Speaker 01:
I mean, Judge Forrest and I travel here.

[00:27:20] Speaker 01:
Does that mean we don't have any constitutional rights because we don't actually live here, so we can't speak out?

[00:27:25] Speaker 01:
We can't exercise religious rights here because we don't live here?

[00:27:30] Speaker 01:
No state, no municipality can condition constitutional rights on being a resident of that municipality.

[00:27:38] Speaker 01:
So I'm having trouble understanding, it's like people are pointing fingers, sue the state, sue the city and so forth.

[00:27:48] Speaker 01:
If you put all the pieces together, these people got arrested by officers of the city of Los Angeles.

[00:27:56] Speaker 01:
So you can argue, but I don't understand how that's a basis to dismiss the case at this stage.

[00:28:05] Speaker 03:
Well, I think for Mr. Matthews, it's actually relatively easy.

[00:28:08] Speaker 03:
He was a resident of Tennessee.

[00:28:12] Speaker 03:
And under state law, it says the locality, you can only get a CCW from that locality where you live.

[00:28:22] Speaker 03:
So regardless of the good cause requirement, Mr. Matthews was never going to be able to get a CCW from Los Angeles or any other locality.

[00:28:32] Speaker 01:
in California.

[00:28:33] Speaker 01:
And that might be the basis for saying the claim by Mr. Matthews, if it proceeds, should be against the state.

[00:28:41] Speaker 01:
But that's not what we're dealing with here.

[00:28:43] Speaker 01:
What we're dealing with here is a dismissal based on the failure, this administrative exhaustion theory.

[00:28:50] Speaker 01:
And I just, I'm not sure how that connects at the stage of a motion to dismiss when the arrest was done by Los Angeles officers.

[00:29:01] Speaker 03:
Well, because he was never going to be able to get a license under any... the state statutes wouldn't have allowed Mr. Matthews to get a license from Los Angeles, even if there was no good cause requirement.

[00:29:18] Speaker 03:
Right?

[00:29:19] Speaker 01:
Okay, suppose...

[00:29:20] Speaker 03:
So any out-of-state resident wouldn't be able to.

[00:29:24] Speaker 03:
He wasn't a resident of the state.

[00:29:27] Speaker 03:
So under the state law, he would not have been able to obtain the CCW.

[00:29:33] Speaker 03:
And he admits that he wouldn't have been able to get a CCW permit even if the good cause requirement didn't exist, but says, oh, well, you should disregard it because

[00:29:49] Speaker 03:
It didn't, you know, that good cause requirement existed for everybody.

[00:29:52] Speaker 03:
So I want to be treated like residents of Los Angeles.

[00:29:57] Speaker 05:
So I thought your argument was that his claims are time barred.

[00:30:02] Speaker 03:
It's both.

[00:30:03] Speaker 03:
They are time-barred too.

[00:30:05] Speaker 05:
Yeah, because, you know, as Judge Clifton was pointing out, he could come to California and he would still have his First Amendment rights.

[00:30:12] Speaker 05:
He couldn't say, you can't protect your First Amendment rights because you're a citizen of Tennessee.

[00:30:18] Speaker 05:
So it's not obvious to me that someone who comes here from Tennessee is rightfully deprived of their Second Amendment rights.

[00:30:27] Speaker 05:
But I didn't think that was before us because your argument was those claims are time-barred.

[00:30:32] Speaker 03:
I think it was both.

[00:30:33] Speaker 03:
I think we talked about both in our papers, but it was time-barred.

[00:30:37] Speaker 05:
So it's a little bit odd to say your Second Amendment rights can be eliminated if you come from a different state.

[00:30:45] Speaker 05:
I'm not sure where that comes from.

[00:30:46] Speaker 03:
Because the state law says that the state law, which they do not challenge,

[00:30:54] Speaker 03:
Says you can only bring you can only get a ccw From the locality where you live Okay, well, we don't know whether that's constitutional or not.

[00:31:08] Speaker 03:
It's not really before us But they're not because they're not because the state they're not challenging the state law.

[00:31:15] Speaker 03:
They're not chopped They're not talking about mr.. Matthews.

[00:31:18] Speaker 05:
I mean we're talking about mr.

[00:31:19] Speaker 01:
I led you down that road because I deliberately set aside the limitations and I apologize for that, but I think you're still focused on the question of whether the city of Los Angeles can defeat his claim at the stage of a motion to dismiss on the basis offered by the district court at least that he'd never made an application.

[00:31:43] Speaker 01:
And you are correct in noting that the police chief under the statute couldn't have issued the permit.

[00:31:51] Speaker 01:
That may explain why in the end the claim against the city on behalf of Mr. Matthews seems to be on shaky footing, but is it subject to dismissal at this point?

[00:32:02] Speaker 01:
Maybe I'll get off of Matthews because there are other arguments regarding Matthews, but as to the other defendants, we seem to be going around and around.

[00:32:12] Speaker 01:
if uh... is there anything more you want to add on the subject of why that's not something that plaintiffs can prove at trial yeah i think uh... there is your honors i think that the for the uh...

[00:32:30] Speaker 03:
For the residents of Los Angeles, I mean, I don't know if I answered the questions adequately about Matthews.

[00:32:38] Speaker 03:
I think he is barred by the statute of limitations.

[00:32:41] Speaker 03:
I don't think the continuing violation applies.

[00:32:43] Speaker 03:
He was arrested today, not today, but you understand what I'm saying.

[00:32:47] Speaker 03:
He was arrested on day one, whatever that day was.

[00:32:50] Speaker 03:
I don't have the date in front of me.

[00:32:52] Speaker 03:
He doesn't bring his lawsuit until more than two years later.

[00:32:55] Speaker 03:
It's controlled by the state statute.

[00:32:58] Speaker 03:
1983 cases are controlled by the state statute.

[00:33:01] Speaker 03:
So it's not a continuing violation because it wasn't.

[00:33:05] Speaker 03:
The only times you have continuing violations are in conspiracy type cases or there was one about receiving and keeping stolen property.

[00:33:14] Speaker 03:
So the criminal defendant had that stolen property for the entire time until the day he was arrested.

[00:33:22] Speaker 03:
So it didn't matter that he

[00:33:24] Speaker 03:
got the stolen property way back here, he still had it way over here when he was arrested.

[00:33:32] Speaker 03:
So I think that's a different kind of case.

[00:33:35] Speaker 03:
So I don't think the continuing violation applies.

[00:33:39] Speaker 03:
So I think it's both for Matthews.

[00:33:41] Speaker 03:
It's the statute and the fact that under the state licensing scheme, he wouldn't have been able to get a license.

[00:33:48] Speaker 03:
But going back to the city residents, I think the

[00:33:53] Speaker 03:
The New York courts holding that we talk about in our papers in People versus Rodriguez, I realize it's a New York state court case, so it's not binding authority on this court, but that's at 171 New York NYS 3rd, 802, and 805.

[00:34:12] Speaker 03:
I think that's similar.

[00:34:14] Speaker 03:
Because that case talked about after New York invalidated their law after Bruin, the plaintiff

[00:34:23] Speaker 03:
challenged as firearms conviction as being unconstitutional, and the New York Court rejected the challenge because the states are still allowed to have the licensing requirements as long as a good cause self-defense isn't one of them.

[00:34:42] Speaker 03:
And because he never applied for a license, he lacked standing to bring a Second Amendment challenge to the licensing requirement.

[00:34:51] Speaker 03:
And the newer court found that, quote, defendants quarrel lives not with the licensing scheme, but with the statute criminalizing unlicensed possessions.

[00:35:02] Speaker 03:
In other words, he does not seek to demonstrate either that the licensing law is unconstitutional, we already know it was, or that it was unfairly applied to him.

[00:35:11] Speaker 03:
it wasn't applied to him at all, but that the second amendment itself, the right to bear arms, confers an absolute entitlement to possess concealed firearms in public, license be damned.

[00:35:22] Speaker 03:
And that's a page 805 of that decision.

[00:35:25] Speaker 03:
I mean, I think that reasoning holds true here.

[00:35:28] Speaker 03:
I think the cases that

[00:35:31] Speaker 03:
Mr. Claiborne cites the desert Grossman versus City of Portland and the desert outdoor advertising cases are different because in Grossman, the plaintiff who was trying to protest in the park,

[00:35:59] Speaker 03:
He was arrested for violating that specific ordinance.

[00:36:07] Speaker 03:
And that specific ordinance was unconstitutional, as the court found.

[00:36:13] Speaker 03:
So I think it's in a different position than we have here, where they were arrested under a constitutional state law.

[00:36:27] Speaker 04:
I don't understand why you say arrested under a constitutional state law.

[00:36:32] Speaker 04:
You're right that they're not challenging at the state level, but the state itself has changed its law, as you mentioned before, in recognition that it doesn't stand under Bruin.

[00:36:40] Speaker 04:
So that's not actually true that they were arrested under a constitutional statute.

[00:36:45] Speaker 04:
And so we have case law that says that when you have an unconstitutional policy or law and you're challenging the application of that, that the causation analysis is quite straightforward.

[00:36:57] Speaker 04:
in terms of being able to tie the alleged injury to the official action of enforcing this unconstitutional law.

[00:37:07] Speaker 04:
So I don't understand the argument that you're making that ignores the fact that even California now recognizes that what was going on before did not stand.

[00:37:17] Speaker 03:
Right.

[00:37:18] Speaker 03:
But it didn't know it at the time.

[00:37:21] Speaker 03:
I mean, this is all of these happened pre-Bruin.

[00:37:27] Speaker 01:
That might work for a qualified immunity defense, but that defense is only available to individuals.

[00:37:32] Speaker 01:
Not suing the arresting officer, they're suing the municipality.

[00:37:38] Speaker 01:
And you can argue if we haven't resolved the Matthews claim on another ground that the state tied the city's hands there.

[00:37:46] Speaker 01:
But as to the LA residents,

[00:37:49] Speaker 01:
the state law appeared to leave it to the city to decide how to apply this good cause requirement and the thrust of the complaint as I understand it is that the city's decision that good cause meant you got to come up with a really good reason and it was limited to judges and law enforcement and so forth.

[00:38:08] Speaker 01:
That's the thrust of the case for the two Los Angeles residents and that was something

[00:38:14] Speaker 01:
that was the city policy that's now the subject of the attack.

[00:38:18] Speaker 01:
So why should that claim be dismissed?

[00:38:22] Speaker 03:
Because they're not saying, because at the time that they were arrested, the state law had the good cause requirement in there too.

[00:38:33] Speaker 03:
So which allowed all the states to have these good cause requirements, I mean the localities, I'm sorry, to have the good cause requirements.

[00:38:45] Speaker 01:
So to say the state was at least in part to blame, I'm not sure how that's a defense to the city's decision that good cause should be narrowly interpreted to those who are law enforcement officers, for example.

[00:38:59] Speaker 01:
That's the city's policy and that's the subject of the current attack.

[00:39:05] Speaker 03:
But they still would have to, they would still have to somehow, they could have challenged,

[00:39:14] Speaker 03:
They could have challenged the law when they were being criminally prosecuted or when they were arrested.

[00:39:19] Speaker 01:
Something doesn't mean you can't do something else.

[00:39:21] Speaker 01:
Sure, they could have challenged the law, but they were arrested and that's what they contend injured them and they're saying it's the city's fault.

[00:39:31] Speaker 01:
And what you're saying isn't that, well, the city had nothing to do with it.

[00:39:35] Speaker 01:
You're saying the city was drawing upon the state, but I'm not sure that's the basis.

[00:39:40] Speaker 01:
I guess we're.

[00:39:41] Speaker 01:
We're both repeating ourselves, so.

[00:39:43] Speaker 05:
You're over time.

[00:39:44] Speaker 05:
Please wrap it up.

[00:39:46] Speaker 03:
I mean, I think I've made most of my arguments.

[00:39:49] Speaker 03:
I mean, the only other sales say desert outdoor advertising is also distinguishable because they were, the city, Moreno Valley was, they were enforcing the actual licensing permitting scheme against them, whereas here,

[00:40:08] Speaker 03:
Once, you know, they're not alleging a Fourth Amendment violation, it was a kind, you know, they had probable cause to arrest.

[00:40:17] Speaker 03:
It's sort of similar to the First Amendment cases where if there's probable cause to arrest, you normally can't say there's a First Amendment violation if there's probable cause for the underlying arrest.

[00:40:30] Speaker 03:
This should be no different.

[00:40:31] Speaker 05:
Okay.

[00:40:32] Speaker 05:
I think we've heard your argument.

[00:40:33] Speaker 05:
Thank you.

[00:40:33] Speaker 03:
Thank you, Your Honors.

[00:40:42] Speaker 00:
To return for a moment to the actual knowledge issue, plaintiff's theory is the city defendants enacted an unconstitutional policy which they applied to the plaintiffs and everybody liked them.

[00:41:00] Speaker 04:
Can I jump in on this last point that we were exploring with your friend across the aisle?

[00:41:05] Speaker 04:
It seems you're not challenging the state law in this case, but if we were to look at, I think if we look at Bruin and we conclude that there were flaws in the state law and there were also flaws in the city policy for what good cause means, if the good cause requirement at all was problematic, then the argument is how can the city be liable because it all traces back to the state?

[00:41:35] Speaker 00:
Footnote 9 of Bruin says if a jurisdiction has an unconstitutional, may issue regime based on the statutes, but they're enforcing it as a shall issue regime, then it passes constitutional muster.

[00:41:58] Speaker 00:
Every licensing

[00:42:01] Speaker 00:
entity in this state had the option of treating the good cause provision as being satisfied by showing the standard

[00:42:15] Speaker 00:
Second Amendment right to carry a handgun in public for self-defense.

[00:42:19] Speaker 04:
So I want to restate your argument to make sure I understand it.

[00:42:22] Speaker 04:
I want to restate what you just said to make sure I understand it.

[00:42:25] Speaker 04:
Your argument is even if the state had an impermissible May issue scheme, if the local governments were employing it as a shall issue so long as the requirements were met and they were not defining good cause to be unnecessarily restrictive, then

[00:42:45] Speaker 04:
then that would be constitutionally permissible.

[00:42:47] Speaker 04:
And you can compare that to what Los Angeles was doing, which was constitutionally impermissible because of the way it was defining good cause.

[00:42:55] Speaker 04:
Is that your argument?

[00:42:56] Speaker 00:
Yes.

[00:42:56] Speaker 00:
That's what the Supreme Court says in footnote nine of Bruin.

[00:43:00] Speaker 00:
And if I may, paragraph 94 of our complaint, the allegation is the city had a no-issue policy.

[00:43:12] Speaker 00:
an actual paragraph but it's in the neighborhood of that one and it says plaintiffs challenged the defendant's gun control policy in Toto.

[00:43:22] Speaker 00:
We are not focusing on the good clause provision.

[00:43:29] Speaker 00:
I think 25 states

[00:43:31] Speaker 00:
I mean, 25 jurisdictions in this state allowed the licensing entity to issue licenses based on the standard Second Amendment right to carry a gun and self-defense, which has existed since before the founding.

[00:43:48] Speaker 00:
And so nobody is challenging the constitutionality of

[00:43:52] Speaker 00:
those jurisdictions because those jurisdictions exercised the discretion under the permissive licensing provision to issue licenses in a way that was constitutional.

[00:44:06] Speaker 05:
Okay, you're well over time now.

[00:44:08] Speaker 05:
Thank you, Your Honor.

[00:44:09] Speaker 05:
Thank you.

[00:44:10] Speaker 05:
Okay, the case of Matthews versus the City of Los Angeles is submitted.