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By Dean Weingarten

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Dean Weingarten

Dean Weingarten

Arizona - -(Ammoland.com)- On the first of May, the Ninth Circuit ordered  that Appellee William Gore, the San Diego Sheriff, respond to the State of California request to intervene in the Peruta case.  Peruta is the case where the Ninth Circuit ruled that Sheriff Gore had to issue concealed carry permits to the public for general self defense.   The order is on hold because  of the request to intervene.  Currently, the Sheriff only issues permits if the applicant demonstrates a unique need under  “circumstances that distinguish [him] from the mainstream,”.  This is commonly referred to as a “may issue” policy.

Sheriff Gore, when ordered to respond, sent a letter to the court.  From the letter:

Motions to Intervene.

Appellee believes that the Attorney General is the appropriate intervenor in this case because the panel opinion finds California’s legislative scheme regarding the carrying of handguns unconstitutional. Appellee requests that the Court grant the Attorney General’s Motion to Intervene. Appellee takes no position on other intervenors.

Mootness.

This case is not moot. Appellee has not changed his policy or procedures for the issuance of concealed carry licenses. All current applications that do not meet the existing policy are being held without action, pending final direction from the Court or the Legislature.

The problem with this response is that it argues directly against fact.   The Sheriff is claiming that Peruta found the California “legislative scheme” to be unconstitutional.   It did not.   It found the Sheriff’s policies of refusing to issue concealed carry permits to be unconstitutional.  No one is claiming that Sheriff’s do not have the authority to issue permits, except Sheriff Gore.    Numerous other Sheriffs in California issue permits on a “shall issue” basis.  No one else is making the argument that they do not have the power to do so, except Sheriff Gore.   From the Peruta decision:

The power to grant concealed-carry licenses in San Diego County is vested in the county sheriff’s department. Since 1999, the sheriff’s department has required all applicants to “provide supporting documentation” in order “to demonstrate and elaborate good cause.”

What Sheriff Gore, through counsel, is saying, paraphrased from the legalese sent in response to the court order:

Its not my fault!  I am only following orders (the law)!  I do not have a choice, so do not hold me responsible!

Everyone else, including the Ninth Circuit, knows that this is not true.

The responsibility is directly that of the Sheriff’s department, and to some extent, the County.   Because the Sheriff is an elected official, the county cannot order him to do what they say, and the Sheriff is the chief executive officer for  the Sheriffs department.   The Sheriff is trying to deny all responsibility for the issuance of concealed carry permits in San Diego, when the law clearly makes him the responsible authority to issue the permits.

It is an election year, and we might expect a song and dance from an elected official who wants to muddy the waters as to what his policy is, especially when the policy is as unpopular as that of “may issue” concealed carry.  It seemed that Sheriff Gore had not decided when I wrote this article in February.

Now that the court order has forced the Sheriff respond, it is clear that he will refuse to issue concealed carry permits on a shall issue basis until some legal authority orders him to do so.   He has the authority to do otherwise.  He simply refuses to use that authority.

Sheriff Gore would like voters to believe that he does not have a choice.   That posture is simply false.

The Ninth circuit is still deciding whether or not to take the decision to an “en banc” panel of the Court.
c2014 by Dean Weingarten: Permission to share is granted when this notice is included. Link to Gun Watch

About Dean Weingarten;

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

  • 3 User comments to “San Diego Sheriff tries to Dodge Responsibility for Gun Permits”

    1. Charles Nichols on May 23, 2014 at 7:56 PM said:

      I made the same point in my Federal lawsuit – Nichols v. Brown, that the Peruta court did not find the California “legislative scheme” to be unconstitutional.

      Here is the spin the district court judge assigned to my case put on it:

      “Accordingly, Peruta did not rule on the overall constitutionality of California statutes because it accepted the lawfulness of California’s firearms regime…”

      I know, Orwellian double-speak. But the end effect is that one way or another the Peruta decision is going to result in someone filing a cert petition to SCOTUS.

      Charles Nichols – President of California Right To Carry
      http://CaliforniaRightToCarry.org

      “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2809.

      “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2816.

    2. jerrys kidds on May 24, 2014 at 9:52 AM said:

      Unfortunately this sheriff is running on his own this election. No one is running against him. Had there been some people running against him he may have been forced to comply? This guy needs to go in a big way.

    3. Julian on June 3, 2014 at 2:06 AM said:

      While I understand your point (i.e. the Sheriff could easily stay constitutional just by issuing), I think it is stil a California legislative issue if the law even allows a Sheriff to have unconstitutional discretion.
      Our legal system does allow rights to be taken away (e.g. people put in jail), but only when they have infringed on other people’s rights or are medically deemed unfit for reasonable judgment, but not otherwise — they can’t tell me I can’t bear arms if I’m a successful, law-abiding citizen. So there simply can’t be a state law that allows discretion in this regard — the discretion itself is unconstitutional. Sure, we could keep the unconstitutional law and hope that all Sheriff’s act constitutionally anyway, but I’m actually glad it is getting challenged at the state law level. There is simply no way to defend the huge discretion currently imparted by the law. The only law should be that felons (maybe only those for violent crimes) and certain mental illnesses prohibit ownership. The simple fact that currently a person is treated differently based on whether he/she lives a few blocks away in San Mateo County versus Santa Clara County makes the arbitrariness so blatant — it is hard to call it a law when it is so inconsistent. Anyway, I agree with your point that the Sheriff could just act constitutionally, but just saying challenging this at the state level is what we really need. I just hope the Court “sticks to its guns”.

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