San Diego Sheriff Dodges Concealed Carry Permit Responsibility

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 decision in which 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 an applicant demonstrates a unique need under  “circumstances that distinguish [him] from the mainstream,”.  This is commonly referred to as a “may issue” policy . . .

Wednesday Sheriff Gore sent a letter to the court in response:

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 practice of refusing to issue concealed carry permits to be unconstitutional.  No one is claiming that sheriffs do not have the authority to issue permits. Numerous other sheriffs in California issue permits on a “shall issue” basis. No one else is making the argument that they don’t 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, is this: Its not my fault! I’m only following orders! I don’t have a choice, so don’t hold me responsible!

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

The responsibility for issuing carry permits 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 Sheriff’s 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.

This 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 that policy is as unpopular as that of “may issue” concealed carry.  Now that the court order has forced the sheriff to respond, it’s 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 doesn’t have a choice in the matter. 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.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Gun Watch

comments

  1. avatar ST says:

    Except , legally speaking, Sheriff Gore’s authority to issue or deny carry permits as a sheriff in the State of California comes from said states legislative code.

    Hence his punting of the issue to Kamala Harris- who as State Attorney General, represents the interests of the government. It also , conveniently for Gore, serves as reason to abandon the case- if things go Tango Uniform for Club Gun Control , it’s not his ass on the fryer .

    What happens next depends on Kamala Harris. If she’s got aims for higher office beyond California, she might actually stand aside and let the Peruta ruling be- because if she lost the case and CA was forced to go shall-issue , it would be the end of her career as far as the Democrats are concerned. That is why the woman with her job in Illinois ,Lisa Madigan, decided to shut up and color when Posner rendered his verdict there.

    If Harris doesn’t give a rat’s about future political office though, look out.

    1. avatar Mark N. says:

      Kamala Harris will go balls to the walls. Her (current) aim for higher office is the governor’s mansion after Jerry Brown terms out, in a state that is hard core anti-gun in all of the major metro areas and has a distinct democratic majority in both houses of the state legislature. On top of that, she is a hard core gun banner, a true believer, who has done everything in her power to delay and disrupt the purchase and sale of firearms in this state–gleefully, I think. And she is a hypocrite, having argued in a number of cases that attacks on “may issue” policies enforced by local sheriffs is not a state concern–and successfully has the AG dismissed from those cases. Now, with the apple cart overturned, she will do anything and everything in her power to right it and maintain the status quo.

      1. avatar Ryan J says:

        Comments are these are why I read TTAG. You guys are awesome.

    2. avatar LarryinTX says:

      WTF is the difference between “shall issue” and the court says the sheriff HAS to issue? If he has no choice, why is he included in the process?

      1. avatar Stuki says:

        Welfare for more equals. Self aggrandizement by tax feeders. And over a century’s worth of publicly funded, progressive indoctrination doing it’s job well enough to render the overwhelming majority of useless drones unable to contemplate breathing without first asking which progtard he needs permission from. There may be other reasons as well, but those cover the bases.

  2. avatar cubby123 says:

    Kamala Harris is in direct violation of Ethics in California and should be filled against as she has NO RIGHT OR DUTY ti file in said case as it is not a law she can use her office to campaign for or against. IT IS NOT THE DUTY OF THE ATTORNEY GENERAL’S OFFICE TO SIDE WITHEITHER BRADY OR THE NRA.THEREFORE SHE IS IN VIOLATIOB OF THE CALIFORNIA ETHIC CODES. AN DSHE SHOULD BE HELD RESPONSIBLE.

    1. avatar Mark N. says:

      You can cut the caps, and moreover, legally speaking, you are wrong. She has a duty and the right to defend the laws of the state of California against constitutional challenge. And, according to the dissenting opinion in Peruta, the majority opinion overturns the State’s legislative scheme for issuing CCWQ permits–which is in fact the very thing she argued in asking for leave to intervene.

    2. avatar rlc2 says:

      Agree on caps- Cubby believe me I am as upset about this decision by Gore, and worse Harris sticking her nose into this in the first place, after passing on it the first time, as you seem to be-

      but we can all agree to respectfully disagree here with one another without shouting.

      And respectfully, Mark N, I disagree with your take-and why…

      I couldn’t quite put my finger on it, partly because this is getting so convoluted, following the intervenor and enbanc rules- (see below for more info on that)

      so I went back to Calguns.net forums where some very astute posters have been following this since the beginning- and here is a much better explanation than I could give:

      http://calguns.net/calgunforum/showpost.php?p=14099999&postcount=538

      1. avatar Mark N. says:

        I didn’t say she is right–I’ve repeated what she is arguing, and she has at least one Court of Appeal justice who agrees with her take–since he is the one who came up with it. What she is doing is perfectly ethical–always remember that in every lawsuit, there is one winner and one loser, but the fact of losing does not mean that the positions taken were unethical or unsupported by existing law. If you read all of the comments on CalGuns, you will learn that plaintiff’s counsel conceded that the Court has discretionary authority to allow Harris to intervene–and basically conceded that maybe they should. I assume that the “backstory” is that allowing intervention will also permit an appeal to the Supreme Court after the en banc petitions are decided, which cannot occur if her motion is denied. (Without intervention, her request for en banc will be denied as not filed by a party to the case, and Peruta will then become final with no one to appeal to SCOTUS.)

    3. avatar None ya says:

      Nice caps. Rage much.

  3. avatar DaveM says:

    Wow, hard to believe SD sheriff is still not issuing CCW
    Guessing that has been going for 30 years, unless you are somebody

    1. avatar Ryan J says:

      If he starts issuing he loses leverage for campaign contributions from wealthy donors who want a CCW.

  4. avatar Mk10108 says:

    THIS IS SIMPLE FOLKS, BEING AN ELECTION YEAR. If you own a gun, thank Sheriff Gore for his service and VOTE him out of his JOB.

    1. avatar G8tor68 says:

      Got my absentee package the other day in the mail. Too bad the Bill Gore is the only name under the Sheriff category. I guess I’m voting for Mickey Mouse. I know it wont help, but someone needs to run against him.

    2. avatar GSRpositive says:

      Unfortunately Gore is unopposed in the primary, and it is unlikely that there will be enough write-ins for a real candidate to make a difference.

  5. avatar Daniel Silverman says:

    The banter will continue and counties like San Diego and San Francisco will stalk until such time they are smacked down to process the applications.

  6. avatar Excedrine says:

    An elected official dodging their official responsibilities because of their purely emotionally-driven and politically-motivated but thoroughly wrong beliefs?

    Say it ain’t so! And at 11: Water is still wet!

    And the beat goes on.

  7. avatar Accur81 says:

    Sheriffs are supposed to have balls. That’s not the case here.

    1. avatar rlc2 says:

      Yep. Gore had a chance to inject some common-sense into the conversation here, but since he punted the first time, telling his counsel to tell the Court, a day late, that he didnt want to pursue it, now he is on the hook and fail to give Harris more support.

      And so he does, not just enabling the charade to continue, when he could honor the conservative nature of San Diego County, representing the vast majority of the citizens he serves, as reflected in the 90% support “self defense” for good cause, in the online poll in the digital edition of the UT San Diego.

      But also going beyond neutrality to subtly lie about the case:
      CIting the same failed position of the dissenting judge, and misrepresenting it as the entire panels opinion,

      and

      tossing the hint out there that he’d wait on implementing the policy until AG Harris decision, OR legislative action to reverse the effect.

      Bottomline- he’s in the bag with Harris.
      Not surprising when you consider he has no challenger- so the money and influence he has to honor is that of the biggest donors- and I am sure the progtards are spreading cash around, including the anti-gunners and others from the Bay Area who need him to follow their orders. Just like the indian casinos and land developers he took money from last time. No need to pay attention to the little folks.

  8. avatar Mark N. says:

    An argument can be made that Gore is violating the Peruta decision as it now stands, despite the fact that “issuance of mandate” has been stayed. The case is citeable and binding authority right now, unless and until overturned, irrespective of the issuance of a final order to the trial court to reverse its order of summary judgment issued in favor of Sheriff Gore. In simple English, Peruta IS the law of the circuit, and Gore is ignoring it.

  9. avatar Lt Dave says:

    Indecision is a decision.

  10. avatar BlueBronco says:

    The irony is the Orange County sheriff is full steam ahead on permits.

    1. avatar Ryan J says:

      Hutchens realized she lost and it was a waste of time. Better get on to more important stuff.

  11. avatar john coward says:

    Sheriff Hutchens, know orange county has 10 million people, this means on average 500,000 want this permit. 50 permits a day will give you 10,000 day till you get your permit. Wow, why wait 10,000 days
    for this CIVIL RIGHT. Pay money, file paper work, home visits, all just more crap to delay.
    NO home, NO money, No JOB, all means you do not have a CIVIL RIGHT, and
    done come back 10,000 days. The Sheriff wins, you lose it.

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