Rahimi, Bruen & CA Carry Permit Denials
An Interview with Don Hammond
In late July, we had a great visit with Don Hammond, a Los Angeles County attorney whom we met several years ago through our affiliated instructor Edmond Tan. The previous month, Don had won an appeal for a client who was denied a concealed carry license. The timing was interesting because his case echoed a supreme court case that was in the news. Don agreed to tell us about the L.A. County case and share his thoughts on bigger issues. For a less formal version, enjoy video of our visit at https://www.youtube.com/watch?v=sEFDfBqYYLw .
eJournal: Thank you for speaking with us, Don. Please tell us about yourself.
Hammond: I’m a criminal defense attorney and founder of the law firm Criminal Defense Heroes, in Torrance, CA, which is in Los Angeles County. I’ve been shooting since I was about eight years old, when I first fired a shotgun. It knocked me on my butt. Now, I am a certified shooting instructor and teach classes with Edmund Tan at Shoot Safe Learning in Lomita.
California now requires a 16-hour class, so we do one day in the classroom and one at the range where I help teach the tactical stuff and the shooting qualifications. In the classroom, I talk about CA’s gun laws, particularly as they apply to pistols and how people who are getting concealed carry licenses can stay out of trouble. I’d rather talk with people in advance about how to do it right, rather than have them in my office three or four months later because they did something they shouldn’t have.
I have a pretty varied practice, both geographically as well as criminal defense-focused and firearms-based. I have cases open right now from San Diego to San Luis Obispo and out east to Indio. On Monday I flew to court in Santa Barbara. I travel a lot so it helps that I’m a pilot and a flight instructor.
eJournal: When you defend gun-related cases, are most related to regulatory gun law?
Hammond: I’m defending gun cases fairly frequently. This morning I was in court and two of my three clients are accused of possessing what CA calls assault weapons.
eJournal: How often do you defend a genuine self-defense case?
Hammond: Self-defense cases, where somebody used some level of force, come up three to five times a year. Most recently, a client had a CCW license and was carrying a gun but didn’t go straight to the lethal option; he used pepper spray in self defense. I talked to the police and persuaded LAPD that he’s a responsible citizen who chose to de-escalate the situation. They did not even file the case. Those things happen pretty frequently.
Sometimes when self defense comes up, it’s imperfect self defense. What was going on isn’t always black and white. Who threw the first punch? Was it self defense? Who was at fault? If it’s not real clear, we have to make the argument.
I’m very familiar with litigating CA’s castle doctrine and duty to retreat. I recently defended a Navy DOJ police officer from Florida who was in CA for medical treatment. He got into a road rage incident. The other guy got out of his car and was coming toward my guy. Allegedly, my guy pulled his off-duty weapon and pointed it at the guy, which has the tendency to defuse situations rather quickly. The other guy called the cops and said, “Hey, this guy just pointed a gun at me.”
My guy was charged with assault with a firearm. That case is on track right now for dismissal through a mental health diversion and the case will ultimately be dismissed. Sometimes getting the sure dismissal is better than picking 12 jurors and trying to fight it head on. Case dismissed is case dismissed.
eJournal: Several months ago, you successfully appealed the denial of a concealed carry license in Los Angeles. Why was it denied and how did you solve the problem? Why was overturning that denial so very unusual?
Hammond: First, a little background: Senate Bill 2, some of which is on hold, is the CA legislature’s response to Bruen. It was a major change to a lot of different aspects of CA firearms laws. Historically, it was nearly impossible to get a concealed carry license in CA’s more populated counties like L.A. County. They just weren’t issuing them. They had the good cause standard, but the most common reason had been a moral character denial. The chief of police or the sheriff in the county said, “We think you’ve got bad moral character, so we’re not going to give you a license.” It was very broad, very subjective.
Bruen shot that down and over the last two years or so they had to start issuing some licenses. SB 2, which took effect January 1 of this year, overhauled the entire system. The new law eliminated the moral character requirement and lists the reasons for presumptive denial.
The first part says, “unless a court makes a contrary determination pursuant to Penal Code Section 26206,” you can presumptively deny a permit for certain convictions within the past five years, others within the last ten years, having a restraining order within the last five years, being irresponsible with firearms and getting them stolen – there’s a whole laundry list. The most frequent reason now for denying a concealed carry license is what they call “reasonably likely to be a danger to self, others or the community at large,” whatever that means. It’s pretty broad.
Now, PC 26206 created an appeals process. If a police chief or sheriff denies someone a license, there’s a right to appeal it to a court and get a ruling from a superior court judge. That is what we did in the case you asked about.
We had 30 days in which to file an appeal after a police chief denied my guy a license. This was the first appeal in L.A. County, so I went around to a bunch of different clerk’s offices and asked, “How do I file this thing? Who wants it?” until I finally got to the right place. This judge is going to hear all these appeals [in L.A. County] and it is going to be the same DA on the other side, so we will develop some institutional knowledge.
My client was arrested in 2014 for domestic violence – just an arrest, no case was ever filed so obviously, no conviction. The arrest record has since been sealed. As part of that arrest, the police got a judge to issue an emergency protective order. That’s common to domestic violence arrests. It prohibits contact for seven days to allow the victim to go to court and seek protection. In this case, the guy’s wife never did that, so after seven days the restraining order dissolved, and he had no reason to think about it for the last 10 years.
On his CCW application he answered, “Yes, I was arrested 10 years ago by the same agency I am applying with. I am not hiding anything here,” but he completely forgot the emergency order. That order was just one piece of paper in a big pile of paperwork that he was given as he was leaving the jail. There is another question on the CCW application that asks, “Have you ever been the subject of any kind of a restraining order?” With no reason to think about it since then, he answered, “No. I have never been subject to any restraining order.”
The police department initially said, “We are denying you because you are subject to a restraining order.” He said, “What are you talking about? I have never been subject to any restraining order.” After a little back and forth by e-mail, the agency said, “Oh, it looks like you are right. Well, we are going to deny you because you failed to disclose this protective order on your application.”
There is nothing in the law as it is currently framed, that says failure to disclose is reason for denial, but we’re seeing this very frequently. Someone misunderstands the question on the application, or they forget that something happened, and these agencies issue denials for failure to disclose, which is not correct.
There is a criminal statute for knowingly failing to disclose something on an application, which the judge brought up at the hearing, but there is nothing in the law that allows them to deny a CCW license because of a failure to disclose. They couldn’t prove that my client knowingly did that. There are also grounds in the statute for revoking a permit if they discover something later that they didn’t know when they granted the permit, but that is not denial of the application, either.
I drafted a brief explaining this, and at the hearing, I talked about it and convinced the judge. It was the first such appeal a judge had ever heard in L.A. The district attorney or prosecutor has the burden of proof by a ponderance of the evidence to show that the person should be denied a permit, that they are a prohibited person under CA PC 26202. The judge found that the prosecutor failed to meet the burden of proof and ordered the local police department to please issue a license to my client. It was a big win.
This happened over two months ago. Back on July 2, the police said his permit should be available in a couple of days, he followed up a couple of times, and the police stopped responding to him. I wrote a nice demand letter to the city attorney saying, “Hey, tell your chief to get his act together.” I was considering having to get the court to enforce the order to issue a license to my client. If I’d had to, and had won provision of a writ of mandate, I would have expected attorney’s fees from the department. Fortunately, the city attorney prodded the police chief and my client now has his license.
eJournal: Are you becoming the expert everybody goes to for CA license denials?
Hammond: I hope to be that expert because I honestly don’t know any other attorneys who are actually doing these hearings. The one I did and won was the first one a judge ever decided in L.A. County, so nobody else has that experience.
In all fairness, I did lose an appeal the following week for a guy with two separate domestic violence arrests but no convictions in his past. The police agency did a psych report as a part of their evaluation and said things in his background could indicate dangerousness. The judge was not willing to go against the psych report to overturn the denial. I encouraged my guy to appeal it up to the second district, but he didn’t want to. He can reapply in two years.
I laid out some arguments for another guy prior to his hearing on a denial. He decided not to hire me to help him with the hearing and he lost. Now, he’s hired me to file an appeal. I don’t know what he said at the hearing, so can’t predict how successful I’ll be, but I’m working on getting the record.
A few weeks ago, I happened to be in court in Orange County on a restoration of rights. While I was in court, I saw a pro-per guy [in propria persona] in the very first CCW license appeal an Orange County judge was going to decide under 26206. Nobody knew what was going on! The judge said, “What is this? I’m gonna have to read this statute and figure this out. The prosecutor standing there, bumbling, said, “I don’t know what we’re supposed to do. It looks like I have the burden of proof.” The poor appellant trying to get his CCW license was like, “Well, I don’t know how to do this, either,” and so as he was leaving the courtroom, I slipped him a card and he is now a client. I will be the attorney representing him on the very first of these appeals that will be decided in Orange County.
eJournal: How extensively did your successful L.A. County appeal use the principles the supreme court laid out in the Bruen decision? Has it made a big difference in CA?
Hammond: I think it has. It’s background because we’re within a statutory framework and the judge feels that they’re confined to the statute in terms of what is admissible in these hearings. When I file a brief on one, I start with Bruen and Heller. The supreme court said that we have an individual right to carry firearms for personal protection; we don’t have to justify it individually. We’re talking about a fundamental right, and I give the history. I think a lot of the judges don’t follow these cases because they’re not gun people. There’s a lot of language about this individual right in US v Rahimi. Any restriction on it, like in Rahimi’s case, is going to be a temporary limited restriction after specific findings. It doesn’t fly to deny a permit to somebody who has a clean history because they didn’t reveal something or because you think everybody’s reasonably likely to be dangerous if you let them carry guns. We’re talking about fundamental, constitutional rights.
eJournal: Before moving on to Rahimi, one last question related to Bruen and SB 2 – How much has carrying a gun legally for self defense opened up and how much was countermanded through new restrictions like so-called sensitive places?
Hammond: It has done a lot of good. Bruen is why our sensitive places restriction in SB 2 is on hold right now. Chuck Michel, his law firm, and the California Rifle and Pistol Association are pulling the laboring oar on the lawsuits that are getting us these injunctions and they’re doing a fantastic job at using Bruen to squash some of the more egregious parts of the new laws.
Senate Bill 2 was passed as the CA Legislature’s response to Bruen. They basically said the entire state is a sensitive place, so even if you get a license, you can’t carry anywhere. SB 2 tried to flip the rule on private businesses to only let you carry where there is a sign that says you can, otherwise, it’s a sensitive place. That’s all on hold. Right now, we’re at status quo in terms of where people can carry with a valid license and for sure that’s all Bruen-based.
They’ve had to loosen the standards for giving out licenses. The process for an expedited writ of mandate if a local agency denies somebody a carry license is a huge step in the right direction. We have 30 days to file the request for hearing and they have to give us a hearing within 60 days. That we get the hearing, and we get to go convince the judge to overturn the agency and say, “No, this isn’t a good enough reason. Give them a license,” shows that they’re taking this seriously. In many ways, judges are more apt than cops to respect the law.
eJournal: When I read about your carry license appeal and denial based on the long past and brief restraining order, it echoed a case, Rahimi, that the supreme court recently decided, which if I understood it, challenged stripping gun rights from people who had domestic violence restraining orders.
How much did Rahimi water down Bruen’s instructions on how to apply the Second Amendment? Justice Thomas wrote that it defeats the purpose of historical inquiry altogether. Did it?
Hammond: I wrote an article on Rahimi for a local newspaper. My title was, Bad Facts Make Bad Law, because this was a terrible set of facts to take up to the supreme court. I don’t really begrudge them bending over backwards to find a way to keep guns out of this guy’s hands. Everybody except Justice Thomas agrees that Mr. Rahimi should not have guns, but I think the way the supreme court got there is confusing and gives very poor guidance to lower courts. Since Bruen, all the circuit courts and the district courts are struggling to apply this standard. In Bruen itself, the court said surety laws aren’t close enough historical analogs to deny gun rights. Then in Rahimi, they turn around and say, “Surety laws existed, and those are close enough. We’ll use that as our historical analog.” What’s a lower court to do?
eJournal: What’s a surety law?
Hammond: A surety law has you post a bond. If we thought you have a tendency toward violence, we’d ask you to post a bond so that if you hurt somebody with your gun, we could get them money. If people didn’t post the bond, they weren’t allowed to carry a gun. It was a way of disarming them.
It’s key in Rahimi, though, that the court sided with that perspective because it would be a limited deprivation of rights. It’s not a permanent thing. In cases related to concealed carry denial, I often ask, “What stops this from being a permanent deprivation?” If we lose the 26206 hearing in court, that triggers a two-year waiting period before they can apply again, but if it was a very general denial based on “reasonably likely to be a danger,” how long is that true? If something happened 15 years ago making you reasonably likely to be a danger, at what point has it aged out?
There’s a case from the parole context – I’ve done some life or parole hearings to bring people home who have been incarcerated for 20, 30, 40 years – called In Re: Lawrence that says the immutable factors of the commitment offense are no longer probative of present danger to society after a number of years and rehabilitative steps. We’re looking at exactly the same thing in this context. After some number of years and other things a person has done in their life, you don’t get to keep using something against them that happened a long time ago. I am about to brief that argument in one of my cases.
I think Rahimi is very confusing as to what standard the lower courts are going to try to apply. Some of the confusion is because not enough justices would buy in on a better, stronger historical analog. Some justices in their concurrences outright said, if I could, I would overrule Bruen, but I can’t, so I’m to take away Rahimi’s rights. There’s a lot of horse trading that goes on behind the scenes of the supreme court.
eJournal: Can’t we take a better case up to the supreme court to clarify when it is OK for the government to deny people’s rights?
Hammond: There are numerous cases working their way up across the country. A couple out of Chicago related to magazine capacity and assault rifles are probably going to make it to the supreme court. I think they’re closer to making it to certiorari, which is the supreme court agreeing to hear a case, than some others. The Ninth Circuit right now has some CA cases on magazine capacity, the handgun roster, and assault weapons bans in various stages of briefing and argument. We’re looking for decisions on those, and whichever side loses is almost certain to file a petition for writ of certiorari to the supreme court. Before that happens, we may very well get decisions in the Midwestern cases that may make ours moot.
eJournal: Are the magazine capacity cases better to stop the erosion of the historical analog?
Hammond: I think that they’re going to have a very difficult time showing any kind of historical analog to a magazine capacity restriction. We have no problem getting a strong case which will reinforce the Second Amendment and the historical analog standard. I don’t know what the Ninth Circuit’s going to do; I don’t know what the Second Circuit is doing; but I think the supreme court as currently composed, would give a strong Second Amendment ruling on a magazine capacity and an assault rifle ban that would really clarify what the standard is in terms of the historical analogs.
There’s always a chance the supreme court could change before these cases get there, and then who knows? All bets are off and it’s really tough to predict. I hope we can get there before they change too much. How much deference would a new court pay to established precedent? The current court doesn’t pay a lot of deference because they’re overturning things from the 1970s like Roe v Wade and they just overturned the Chevron deference doctrine related to regulatory implementations that’s been in place for a very long time. They don’t seem to have a lot of respect for established precedent. If we get some changes in the court, maybe they’re not going to respect the established precedent, either. It’s tough to know.
eJournal: Like Roe v. Wade returning the abortion issue to the states, isn’t it better if the states handle problems like Rahimi? Texas had arrested and punished him several times, raising a devil’s advocate question: Why can’t we settle down and agree to be bound by our state’s law?
Hammond: Rahimi was charged with a federal law that said that somebody who’s subject to a domestic violence restraining order that meets certain criteria is a prohibited person. It’s an interesting feature of our federalist system that we have this duality of laws, and a particular course of conduct can be prosecuted at the state level or at the federal level. We have a state penal code in CA that outlaws a whole bunch of conduct, then there are federal criminal laws that ban a lot of things, too.
We had a really interesting decision out of the Ninth Circuit a couple of months ago, United States v. Duarte that found that a reformed nonviolent felon who had been to prison and served his time, is not forever a prohibited person under federal law. Conventional wisdom was if you’re ever convicted of a felony, your Second Amendment rights are gone. The Ninth Circuit said, “No, not necessarily. He’s a nonviolent felon. If you embezzled from an employer 20 years ago and you’ve done your time, why should we take your guns away?” It’s a good question and the Ninth Circuit seemed to say, “Well, maybe we shouldn’t.”
We got Duarte from a federal law saying no felon can have a gun under 18 U.S.C. § 922(g)(1); similar to what Rahimi challenged. The Ninth Circuit historically is no friend of the Second Amendment. We are seeing some cracks of light.
Federal laws have a faster path to get up to the federal courts of appeal, whereas, if I wanted to challenge a state law, say CA’s ban on a nonviolent felon having a gun, first I’d have to argue that at the trial court level where I’ve argued and lost on Bruen motions several times. If the trial judge said, “No, we don’t think this guy should have a gun,” I’d have to go to a state appeals court and then the state supreme court and then consider where it goes from there, usually directly to the federal supreme court. You don’t usually get a federal appellate review of a state court decision; getting cert granted is very unlikely.
eJournal: What is the best method for law-abiding citizens to claw back the freedoms that we’ve lost?
Hammond: I think the way to do it is to responsibly exercise our rights. Instead of going around flaunting and brandishing your guns, you should talk to your friends who are anti-gun and say, “Hey, you think I’m a responsible guy, right? Is there a reason that I shouldn’t be allowed to carry a gun?” Of course, they’ll say, “No, you can call the police,” and you say, “How long does it take for the police to get there? If I’m getting mugged in an alley, are the police there to stop it?” When they say, “Well, no,” you say, “God forbid I ever need to, but I need to be able to responsibly handle that myself. I’d like to have the ability to be prepared. Is there some reason that I shouldn’t?”
It is largely a battle of public opinion. I have quite a few anti-gun friends and I have quite a few very liberal friends who are pro-gun. I have a varied social circle from my wife’s very liberal family, who know I have guns and totally support and are fine with it, to my firearms instructor friends who are single issue Second Amendment voters. I’m a very middle of the road guy myself. I’m not beholden to either side politically. Obviously, I feel strongly about the Second Amendment, but I feel just as strongly about other things.
I think change starts with those conversations. On social media when people say we need more gun control, ask, what does that mean? What gun control would you actually like? Get more granular about it when there are terrible incidents. Ask, “Would any of the things you’re proposing have stopped this from happening?” The vast majority of the time, the answer is, “No. The gun control you would like would not have stopped most incidents from happening.” What is the rationale behind imposing restrictions on law-abiding gun owners, when it’s not going to stop the criminals? Where’s the sense in that?
I think that those are reasonable conversations to have. People don’t understand each other’s perspectives. You may not want to fly an airplane and think it’s silly that I do, but why would you want to ban that? I use my airplane as a tool in my business all the time. Analogize it to other issues: I don’t have any interest in knitting, but I don’t think you should be prohibited from it.
People just don’t understand that gun ownership is for sport, some people hunt for sustenance and the supreme court has now recognized a right to personal self defense. I should be allowed to do that, and by the way, when that crazy guy starts shooting in the mall, you’re going to be grateful that I’m there to take him down before he hurts you. The good guy with a gun is real.
That narrative doesn’t get out enough to the anti-gun crowd. People never hear about the good guy with a gun because those stories are not published in the mainstream media. We need to say, “Did you hear about that incident in Texas where that guy in the church had his own gun and took out the shooter?” Yeah, that one did make the news last year.
eJournal: Raise the issue; force the conversation, if needed.
Hammond: It really starts there. On the legal front, we need to find the right cases and have resources and people who are willing to bring them up. People can’t self-fund. Clients paying out of their pocket to litigate these issues are limited in how far they can go. I told one, “We should absolutely appeal this. I’d like to get a transcript and go with it,” and he said, “I’m out of money.” Can you get backing from the California Rifle and Pistol Association or the NRA or other organizations to pay those legal fees and put in the resources?
Right now, all we have is a statute. We’re going to have to get some appellate guidance on this new appeal process for CA carry licenses to give the trial court judges some guidance. Somebody’s got to appeal these things and hopefully we pick the right cases. I do a lot of DUI defense, and I’m in the California DUI Lawyers Association. We bandy around, “How do we pick the right cases to appeal?” The CA DMV does procedurally nonsensical things, taking our clients’ licenses away. We’re very careful about which cases we take up on appeal because we don’t want to make bad law.
eJournal: What’s the bottom line for Network members?
Hammond: There is hope! We are making slow and steady progress in CA. I am optimistic about the current state of things. We’re in a better place with respect to CA’s firearms laws and concealed carry licenses than we were five years ago or even two and a half years ago, for sure. We’re in a better place now than we were 10 months ago. We’re making progress and there’s light at the end of the tunnel. We are improving the situation in CA and I’m proud to be part of it.
eJournal: That’s a great report and I’m proud of you and your work. Stay in touch and let us know what we can do. Thank you for all your time today telling us about it.