The Overlooked California Concealed Carry Lawsuit

David Phillip Vallejos v. Rob Bonta (5:25-cv-00350)

On February 2, 2025, I alerted a lawyer to a pro se lawsuit in the 9th Circuit Court of Appeals that challenges California’s ban on silencers/suppressors. That lawyer is now one of five attorneys representing the Plaintiff-Appellant.

I don’t recall when or why I signed up with the 9th Circuit Court of Appeals for notifications in the case, but when I received a notification that the Court was considering appointing pro bono counsel, I immediately contacted the lawyer.

I wrote, "Appointed counsel is almost invariably a 3L law student.  I've got nothing against silencers, and they aren't my thing, but I would like to avoid a bad published precedent.  You might want to put the word out amongst your colleagues in the 2A community to see if anyone is willing to represent him, pro bono.  There is always a chance that he drew a favorable three-judge panel."

The Plaintiff-Appellant emailed me to thank me for my efforts in getting him legal representation. That was nice.

This was not the first time I had alerted the lawyer to a case on appeal. With a bit of encouragement from me, he has written and filed several Amicus briefs.

I’ve alerted him to a pro se concealed carry lawsuit that was recently filed in the Federal Central District of California, David Phillip Vallejos v. Rob Bonta. Not because I want him to represent the plaintiff but because I want to share my amusement with the mistakes made by both sides.

I have posted a link below to the CourtListener docket and made the relevant filings available for free so everyone can read them. You’re welcome.

As the pro se Plaintiff is not an attorney, I won’t be hard on him. And so don’t take my observations as an attack, even though I don’t support his objective.

First of all, a Civil Rights lawsuit begins by filing a document known as a Complaint. Under Federal Rule of Civil Procedure 8, a Complaint must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

In reality, the Supreme Court has interpreted Rule 8 to require much more, but when you compare his Complaint to the Complaint filed in the silencer/suppressor lawsuit, his Complaint far exceeds what was written in that case. So, who knows? Maybe the judge(s) will think that his Complaint complies with Rule 8.

Notwithstanding that Courts are supposed to “liberally construe” the pleadings of pro se parties, the reality is that if one is a pro se plaintiff in a disfavored lawsuit (e.g., a Second Amendment lawsuit) and file a lawsuit in a jurisdiction infested with anti-Second Amendment judges, the Complaint must present far more than those few categories of lawsuits in which a Complaint must state a prima facie case.

The Second Amendment does not fall into the prima facie category. A judge will never say that it does, but how does one explain why Second Amendment lawsuits are held to an almost insurmountable pleading and standing bar that even prima facie lawsuits aren’t required to meet if the reason isn’t that judges don’t consider the Second Amendment to protect the right of the individual to keep and bear arms?

Notwithstanding that the Federal Central District of California allows conclusions of law to be pleaded as statements of facts in one’s Complaint, Mr. Vallejos’ Complaint is top-heavy with conclusions of law and a bit shy on the facts.

One of his allegations is that District of Columbia v. Heller held that concealed carry is a right protected by the Second Amendment. Heller held that prohibitions on concealed carry do not violate the Second Amendment; the four justices in the dissent agreed with the five-justice majority on that point.

That section from the Heller opinion was so important to Justice Scalia that he read it from the bench when he announced the decision in District of Columbia v. Heller. Now, if you want to make the argument that concealed carry is a right protected by the Second Amendment, then you will have to make that argument based on NYSRPA v. Bruen. An allegation that Mr. Vallejo did not state in his Complaint. And a difficult case to make, given that all three Supreme Court decisions on the Second Amendment cited that section from Heller with approval.

The late great George Young Jr. made similar mistakes in his handgun Open Carry* lawsuit out of Hawaii. That mistake would have been fatal were it not for the pro bono work of his two attorneys on appeal (Alan Beck and Stephen Stamboulieh) and SCOTUS vacating the 7-4 decision by the 9th Circuit Court of Appeals, which held that there is no right to carry a handgun in public, openly or concealed.

However, even liberally construed in Mr. Vallejos’ favor, his Complaint does not seek to openly carry a handgun, loaded or unloaded, anywhere or for any purpose.

Looking at the Complaint and the other filings, it appears that Mr. Vallejo was denied a concealed carry permit by Riverside Sheriff Chad Bianco (now a candidate for Governor of California) because he had been investigated for a crime. He filed an administrative appeal and lost. In a filing, the government asked the Court to take notice of his lost administrative appeal but neglected to attach it to its filing. It will be amusing to see if the judge grants the state’s request to take notice of a nonexistent exhibit mentioned in the filing.

Mr. Vallejo’s memorandum in support of his motion for a preliminary injunction is surprisingly good if one wants to make the case that the Second Amendment protects the right to carry loaded firearms in public, but the Defendants aren’t going to argue that there isn’t a right to carry a loaded handgun in public. They will argue that there is no right to carry a concealed handgun in public without a concealed carry permit.

In 2023, the California Court of Appeals held in People v. Miller that there is no right to carry a loaded, concealed handgun in public. The Court cited NYSRPA v. Bruen and Peruta v. San Diego en banc in holding that California’s prohibition on openly carrying loaded firearms violates the Second Amendment.

Given that the appeal to the denial of a concealed carry permit is made in a California State Court, the state court judge is bound by a holding of the Court of Appeals unless there is a separate three-judge panel holding the opposite. There isn’t one. In every published and unpublished opinion by the California Court of Appeals, California’s prohibition on carrying loaded (and unloaded) concealed handguns in public has been upheld.

Hopefully, the government will correct its filing so we can all see why Mr. Valejo lost his state superior court administrative appeal.

I find this case to be both interesting and amusing because if Mr. Valejo sticks with his lawsuit and cleans it up a bit, his lawsuit could be the one that forces the 9th Circuit Court of Appeals to revisit its en banc holding in Richards v. Prieto/Peruta v. San Diego en banc, that there is no right of the general public to carry a loaded, concealed firearm in public.

But for that to happen, both sides of the lawsuit will have to create a live case or controversy for a Federal Court to have jurisdiction to revisit this Circuit’s en banc holding that concealed carry is not a right protected by the Second Amendment.

In the Baird v. Bonta handgun Open Carry lawsuit, the State of California (via AG Rob Bonta) explicitly disavowed any challenge to Pertua v. San Diego en banc. Likewise, in my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al., which is much broader than Mr. Baird’s lawsuit. Mr. Baird’s is limited to handguns and excludes gun-free school zones that extend 1,000 feet from every public and private school. My lawsuit does not exclude gun-free school zones and includes rifles and shotguns.

I am well into the Fourteenth year of litigating my California Open Carry lawsuit. Judges invariably do one of two things when confronted with a Plaintiff who files a lawsuit they don’t like. They yank the Plaintiff around for a few months and then rule against him if it is obvious from the district court proceedings that the Plaintiff doesn’t understand the Fizzbin rules of the Court.

The district court did that in the George Young Jr. handgun Open Carry lawsuit. However, when confronted by a Plaintiff like me, who is a skilled player of Fizzbin, the Court drags out his case for years in the hope that the Plaintiff will give up, run out of money, get hit by a bus, be sent to prison, or otherwise be taken out of the game.

When I filed my California Open Carry lawsuit in November of 2011, I publicly proclaimed that all of the California concealed carry lawsuits would crash and burn, leaving my California Open Carry lawsuit the last one standing.

They crashed and burned, and I’m still standing. And none of the so-called gun-rights lawsuits today are challenging the 9th Circuit’s en banc holding that concealed carry is not a right. Indeed, both sides are working hard to avoid any such case or controversy. Both sides oppose Open Carry in the California “carry lawsuits,” but given that the restrictions and prohibitions being challenged apply to both concealed and Open Carry licenses, the State of California playing the Richards v. Prieto/Peruta v. San Diego en banc card is a remote possibility, for now.

* Mr Young applied for and was denied a license to carry a concealed handgun and a license to openly carry a handgun. While his appeal was pending, the 9th Circuit Court of Appeals held in an en banc opinion that concealed carry is not protected by the Second Amendment. The three-judge panel, like all three-judge panels in this circuit, was bound by the en banc panel ruling unless overruled by a subsequent en banc panel or by the United States Supreme Court. Mr. Young won the Open Carry part of his lawsuit but lost his concealed carry challenge. Mr. Young did not file an en banc petition seeking concealed carry and again forfeited his concealed carry claim in en banc oral argument. This is why I refer to his lawsuit as a handgun Open Carry lawsuit.

Here is the CourtListener link to David Phillip Vallejos v. Rob Bonta (5:25-cv-00350).