9th Circuit’s Say Awaited in Bid for Concealed Gun

SAN FRANCISCO (CN) - A man who is suing to carry a concealed weapon in Santa Clara County will have to wait for the 9th Circuit's resolution of related cases, a federal judge ruled.

In a 2011 complaint, Tom Scocca said that Santa Clara and its sheriff, Laurie Smith, violated his rights under the equal protection clause by denying Scocca a license to carry a concealed weapon.

Sheriff Smith was named as a defendant in both her official and individual capacities.

Scocca sued along with two-pro gun groups of which he is a member, the Madison Society and Calguns Foundation.

U.S. District Judge Edward Chen dismissed most of the claims in the lawsuit, but deferred ruling on whether Scocca has a Second Amendment right to the license.

This issue is currently pending before the 9th Circuit in two cases: Richards vs. Prieto and Peruta v. County of San Diego.

"The cases will likely address legal issues that have direct relevance for the case at bar - i.e., the scope of the right to bear arms under the Second Amendment, particularly as related to a CCW [carry-a-concealed-weapon] license," Chen wrote. "This in turn may inform the fundamental right analysis under the equal protection claim."

Under the California law, sheriffs can issue concealed-weapon licenses to those "of good moral character," when "good cause exists for issuance of the license." Sheriff Smith has allegedly issued more than 70 such licenses to Santa Clara residents, but denied Scocca's application and appeal for a one.

Scocca argued that he should have been issued a license because he meets both of the standards to have a concealed weapon.

"As to good moral character, plaintiffs maintain that Mr. Scocca's moral character is 'functionally equivalent to the good moral character of the more than 70 licensees with permits to carry concealed weapons by Sheriff Smith," Chen wrote.

"As for good cause, plaintiffs note that Mr. Scocca is the 'director of security risk management at a large semiconductor equipment manufacturer with corporate headquarters in Santa Clara County,'" she added. "According to plaintiffs, Mr. Scocca 'is at a competitive disadvantage in providing discreet executive protection as part of his private investigator business if he cannot carry a functional concealed firearm as part of the services he offers his clients.'"

Chen said Scocca's equal-protection claims involve two components: violation of rights protected by the Second Amendment, and violation based on a class-of-one theory.

Class-of-one theory claims arise when a plaintiff has been "intentionally treated differently from others similarly situated," and "there is no rational basis for the difference in treatment," according to the ruling.

Chen quickly dispatched of this claim as it pertains to Scocca.

"Even assuming that the allegations of being similarly situated were adequate (the court notes that the good moral character allegation, in particular, are conclusory), the court is not satisfied that plaintiffs have alleged enough to give rise to a plausible inference that the differential treatment accorded to Mr. Scocca was intentional, i.e., that he was intentionally singled out," Chen wrote (parentheses in original).

Scocca also did not give any reason why he would have been singled out by Sheriff Smith for disparate treatment, according to the ruling.

Since Scocca might be able to suggest intentional discrimination in an amended complaint, the judge dismissed the class-of-one claim without prejudice.

The claims against Santa Clara County were dismissed with prejudice, however, "because Sheriff Smith, when making her decisions on granting or denying CCW licenses, acts as a representative of the state of California, and not of the county."

Chen also dismissed with prejudice the damages claim against Sheriff Smith in her official capacity because she is an agent of the state, qualifying for protection under the 11th Amendment.

The ruling came down Friday as the nation reeled from a senseless massacre at an elementary school in Newtown, Ct., that left 20 children and eight adults dead.

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