PDA

View Full Version : Sheriff Sandra Hutchens: Sheriff, supervisors ready for battle over gun permits


smokingloon
11-15-2008, 12:14 AM
County supervisors are expected to debate resolution Tuesday calling for changes on revocations of gun permits
BY NORBERTO SANTANA JR.
The Orange County Register
Comments | Recommend

Over the past six months, new Sheriff Sandra Hutchens has received nothing but ovations and support from the county board that appointed her to fill the term of disgraced former Sheriff Mike Carona, who went on trial this month for corruption charges.

But on Tuesday, that relationship could radically change.

Hutchens – who is up for reelection in 2010 - is under fire for her controversial revisions to the concealed weapons policies that were a hallmark of the Carona administration.

Last month, Hutchens began a systematic review of the 1,100 concealed weapons permits granted under Carona and started revoking current permits.

That has triggered an avalanche of emails and phone calls to supervisors and they aren't happy.

"I don't like her views at all," said Supervisor Janet Nguyen about Hutchens revocation of so-called carry concealed weapons permits. And Nguyen is angry that Hutchens has moved to revoke permits without brining in the supervisors or stakeholders on developing a new standard.

"She's becoming like Carona," Nguyen said. "She needs to understand she needs to work with us."

County Supervisor Chris Norby is prepared to present a resolution at the board on Tuesday, where hundreds are rumored to show up, calling on Hutchens to halt her revocation of permits.

And while that effort had drawn fire from Supervisors' Chairman John Moorlach – who argues that the supervisors are prevented by law from interfering in the process of granting ccw permits- even he is uneasy with Hutchens sweeping revisions.

"I'm the chairman of the board," Moorlach said. "So I want to be supportive of my department heads even when I disagree with them. That being said, I believe Sheriff Hutchens could have handled this a lot differently. She could have addressed it in a different way."

Hutchens took office this summer just as Carona's trial was gearing up, as well as a mountain of allegations about abuse of office and a decayed command structure.

Records reviewed by the Orange County Register show that concealed weapon permits soared under Carona, from 28 in 1998 to 468 the next year. Carona ran his campaign largely on the promise that he would expand concealed weapons permits, arguing that a looser standard was a good match for a pro-gun Republican county. By 2006, Carona had granted 1,400 permits, a four-fold increase.

When Carona took over in 1998, Orange County ranked 34th in terms of the numbers of permits granted. By 2006, the county was ranked number nine.

However, the Register also found numerous instances where campaign donors received permits. A Register look at campaign records and weapons permits between 1996 and 2001, found 95 instances where contributors – who gave a total of $68,000 in contributions - got permits.

Indeed, the federal indictment of Carona details one specific instance where a wealthy contributor was granted a weapons permit under questionable circumstances.

Hutchens said that Carona's liberal standard on the good cause requirement for concealed weapons permits, along with the allegations of corruption, prompted her to do a full scale review of the permits.

And while state law gives Sheriffs discretion on how to hand out the permits, Hutchens says the intent of the law is clear: concealed weapons are only for personal protection.

Once she was made aware of potential problems with the permits, Hutchens said she had no choice but to review them and apply a tighter standard in line with the intent of the law.

And no amount of lobbying or displeasure, or supervisors' resolutions will change that.

"Nothing about this storm will change what I'm doing," she said. "This is not a subject for debate. It's a matter of the intent of the law."

Contact the writer: 714-796-2221 nsantana@ocregister.com

http://www.ocregister.com/articles/permits-hutchens-carona-2229547-weapons-concealed


Questions 1: How is she up for RE ELECTION if she never got elected by the people the first time? Wouldn't it just be an election?

Question 2:
Doesn't one uphold the letter of the law instead of the intent?

Question 3: Is the Board of Supervisors trying to make the Sheriff the scapegoat after they put her in office?

JDay
11-15-2008, 5:07 AM
Hutchens says the intent of the law is clear: concealed weapons are only for personal protection.

And just what does she think people get them for?

slowfire
11-15-2008, 6:12 AM
I plan on being at the meeting, if for nothing else than to be counted. It is so much easier getting CCW permits from other states. But the state that I was raised in doesn't see it that way. Does that make any sense?

tombinghamthegreat
11-15-2008, 9:09 AM
I think the open carry crowd should make their presence in that area. If she does not want CCW holders then she will have to deal with people OC.

Theseus
11-15-2008, 10:02 AM
Damn...why do these things always have to be so far! If I didn't have to take my daughter to school I would be right there!

yellowfin
11-15-2008, 1:26 PM
I wonder what it would take to get them asking questions about sheriffs in other counties issuing to political contributors, like the one here for example.

Meplat
11-15-2008, 1:55 PM
She is correct. She has sole discretion. How about a recall election?:43:

Casual Observer
11-15-2008, 1:59 PM
She is correct. She has sole discretion. How about a recall election?:43:

She was never elected in the first place. She was appointed by the county board of supervisors over two EXCEPTIONAL candidates (Anderson and Hunt).

ilbob
11-15-2008, 7:40 PM
She was never elected in the first place. She was appointed by the county board of supervisors over two EXCEPTIONAL candidates (Anderson and Hunt).

I often wondered what made the board bring in an outsider, especially one from LA.

Rumpled
11-15-2008, 9:48 PM
I often wondered what made the board bring in an outsider, especially one from LA.

I think the board's major focus WAS to bring in an outsider, to show they were making a change.

The big thing that I don't think has been properly addressed is that I don't statute give here discretion to recall permits for the good cause. She can recall permits for violations of law and such. But, once they are issued; I thought they were valid for the term.

N6ATF
11-15-2008, 11:37 PM
Especially since they cost $$$ right? That's like the DMV saying, yeah, we gave you a driver's license, but after you spent all that money on driving school, paying the fee for your license, buying that Porsche, and registering it, we decided to unilaterally revoke your license. You can't drive motor vehicles outside your property anymore.

andrewj
11-15-2008, 11:55 PM
Especially since they cost $$$ right? That's like the DMV saying, yeah, we gave you a driver's license, but after you spent all that money on driving school, paying the fee for your license, buying that Porsche, and registering it, we decided to unilaterally revoke your license. You can't drive motor vehicles outside your property anymore.

Especially if you were giving some incentive by being a campaign donor :p

N6ATF
11-16-2008, 12:17 AM
I contributed $1 to Carona's campaign. Does that make me a crony, Sheriff Hutchens!?

/just kidding

gmcal
11-16-2008, 6:29 AM
I don't know the details of Corona's donations, but if a pro ccw candidate was running for election in my county, I'd dontate to their campaign. And if they won, I'd go get a ccw. Does that mean it was a political favor?

CitaDeL
11-16-2008, 7:46 AM
I think the open carry crowd should make their presence in that area. If she does not want CCW holders then she will have to deal with people OC.

+1

I have already suggested this form of protest for those receiving revocation letters. It is not necessary to carry en masse, but it would be helpful to coordinate so that all participating would carry on the same day in different places in Orange County or carry as a regular habit when they are prepared for a detention by law enforcement.

RomanDad
11-16-2008, 9:55 AM
+1

I have already suggested this form of protest for those receiving revocation letters. It is not necessary to carry en masse, but it would be helpful to coordinate so that all participating would carry on the same day in different places in Orange County or carry as a regular habit when they are prepared for a detention by law enforcement.

JUST PLEASE--- DONT DO IT THE DAY OF THE BOS MEETING.... Thanks!

JDoe
11-16-2008, 10:21 AM
JUST PLEASE--- DONT DO IT THE DAY OF THE BOS MEETING.... Thanks!

It would be interesting if some supervisors UOC'd to the BOS meeting. :yes:

I wonder how many of the BOS are aware of UOC?

bwiese
11-16-2008, 12:10 PM
It would be interesting if some supervisors UOC'd to the BOS meeting. :yes:

I wonder how many of the BOS are aware of UOC?

JEEZUS H. KEERIST, don't be friggin' STOOPID. I swear the noob UOCers may still yet screw us up in ways we can't imagine.



JUST PLEASE--- DONT DO IT THE DAY OF THE BOS MEETING.... Thanks!


Please listen to RomanDad. Don't go 'cowboy' and screw things up.

CitaDeL
11-16-2008, 12:35 PM
It would be interesting if some supervisors UOC'd to the BOS meeting. :yes:?

That would be a violation of 171(b) regardless of whether or not the person is a 'supervisor'. Its a public meeting. In a public building. Where public employees do what they do.

I wonder how many of the BOS are aware of UOC?

Probably none.

In the event that someone is going to do some kind of visable protest, it ought to be an empty belt holster worn openly. I think that people wearing a Cal Guns T-shirt would be fun too.

UOC cannot be done at this venue. I think that reports of UOC would have a negligible impact on proceedings, unless the connection was made that this regular, repeated, and lawful demonstration was a result of the new sheriff's revocations. Some would believe that they would try to ban possession or create a new ordinance that would otherwise make it impossible to carry... but they would throw themselves under the same bus DC did.

hoffmang
11-16-2008, 12:35 PM
The goal at the BOS meeting is to make the other side look looney. Please don't help make our side look that way in the first place.

I realize it shouldn't be this way, but it is and it will take being taken seriously at events like this to get back to wearing a firearm in public is normal.

-Gene

IAmASensFan
11-16-2008, 2:19 PM
Yeah, please don't sink our battleship.

Liberty1
11-16-2008, 4:14 PM
The goal at the BOS meeting is to make the other side look looney. Please don't help make our side look that way in the first place.

I realize it shouldn't be this way, but it is and it will take being taken seriously at events like this to get back to wearing a firearm in public is normal.

-Gene

I second this for this event. It is not a UOC venue (I don't think anyone is really planning to do it even outside the meeting place) and the vast majority of those attending want their time at the BOS to be focused on retaining their privileges and making a political show of force. We ALL need to work together and support the organizers of this event by staying focused on 12050 LTCs.



JEEZUS H. KEERIST, don't be friggin' STOOPID. I swear the noob UOCers may still yet screw us up in ways we can't imagine.

Bill, you and Gene have the good cop/bad cop schtick down pat! Please tell me it is planned? :rofl::grouphug::cowboy:;)

You're gona need your noob OCers in the future. Be kind and bring them into the fold gently. They will be an asset when called upon.

Gray Peterson
11-16-2008, 6:02 PM
It would be interesting if some supervisors UOC'd to the BOS meeting. :yes:

I wonder how many of the BOS are aware of UOC?

All 5 of them ARE aware of UOC. I made them quite aware in emails I sent to Chairman Moorlach when I CC'd the rest of the Supervisors, which was responded by Professor Mainero, Chairman Moorlach's legal advisory.

I will post the emails soon. However, under NO CIRCUMSTANCES SHOULD ANYONE UOC AT THE MEETING. However, DO bring up the fact that UOC is NOT unlawful in California, and that you will exercise it if Hutchens revokes their permits, or continually stalls issuance for self defense.

hoffmang
11-16-2008, 8:52 PM
Bill, you and Gene have the good cop/bad cop schtick down pat! Please tell me it is planned? :rofl::grouphug::cowboy:;)
Totally spontaneous which may be a description of what dorks he and I are :43:

You're gona need your noob OCers in the future. Be kind and bring them into the fold gently. They will be an asset when called upon.
I (and I think we) concur. That's why I caveat with my statement that I understand the desire.

-Gene

nhanson
11-17-2008, 12:59 PM
For those who are attending with your CCW and carrying, you might want a copy of PC 171b with you....section(b)(3) is the key!

171b. (a) Any person who brings or possesses within any state or
local public building or at any meeting required to be open to the
public pursuant to Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of, or Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, the
Government Code, any of the following is guilty of a public offense
punishable by imprisonment in a county jail for not more than one
year, or in the state prison:
(1) Any firearm.
(2) Any deadly weapon described in Section 653k or 12020.
(3) Any knife with a blade length in excess of four inches, the
blade of which is fixed or is capable of being fixed in an unguarded
position by the use of one or two hands.
(4) Any unauthorized tear gas weapon.
(5) Any taser or stun gun, as defined in Section 244.5.
(6) Any instrument that expels a metallic projectile, such as a BB
or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(b) Subdivision (a) shall not apply to, or affect, any of the
following:
(1) A person who possesses weapons in, or transports weapons into,
a court of law to be used as evidence.
(2) (A) A duly appointed peace officer as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
subdivision (a) of Section 12027, a full-time paid peace officer of
another state or the federal government who is carrying out official
duties while in California, or any person summoned by any of these
officers to assist in making arrests or preserving the peace while he
or she is actually engaged in assisting the officer.
(B) Notwithstanding subparagraph (A), subdivision (a) shall apply
to any person who brings or possesses any weapon specified therein
within any courtroom if he or she is a party to an action pending
before the court.
(3) A person holding a valid license to carry the firearm pursuant
to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2
of Part 4.


enjoy

Doheny
11-17-2008, 4:30 PM
For those who are attending with your CCW and carrying, you might want a copy of PC 171b with you....section(b)(3) is the key!

The building has metal detectors. Regardless of what the law says, they're likely not going to let you in. If a CCW holder wants to argue about it, they'll just tell him to surrender his/her permit and weapon, which they have the right to do as a condition of the license. That will certainly will get your permit pulled and not renewed!

Even if your permit is issued by someone else, they'll likely tell you to get lost. If they do, are you really going to hire an attorney to sue them over it? Filing a complaint won't get you anywhere either.

Leave your gun at home or in the car (locked up, of course.)

See number eight:

http://www.ocsd.org/information/sheriff_services/ccw_permit/terms_of_license/



.

nhanson
11-17-2008, 7:03 PM
The building has metal detectors. Regardless of what the law says, they're likely not going to let you in. If a CCW holder wants to argue about it, they'll just tell him to surrender his/her permit and weapon, which they have the right to do as a condition of the license. That will certainly will get your permit pulled and not renewed!

Even if your permit is issued by someone else, they'll likely tell you to get lost. If they do, are you really going to hire an attorney to sue them over it? Filing a complaint won't get you anywhere either.

Leave your gun at home or in the car (locked up, of course.)

See number eight:

http://www.ocsd.org/information/sheriff_services/ccw_permit/terms_of_license/



.

I, fortunately, am not licences by the OC Sheriff. My principle is Kern Co and I have a second residence here in OC.

Maybe a lawsuit is called for since the Co. should not override state law however, I'm not a lawyer and something like this should not be blundered into. I think it has possibilities yet, pushing on 171b might prove Hutchins point on the other hand; until the bull is challanged, the bully will keep doing their thing.

RomanDad
11-17-2008, 7:15 PM
I, fortunately, am not licences by the OC Sheriff. My principle is Kern Co and I have a second residence here in OC.

Maybe a lawsuit is called for since the Co. should not override state law however, I'm not a lawyer and something like this should not be blundered into. I think it has possibilities yet, pushing on 171b might prove Hutchins point on the other hand; until the bull is challanged, the bully will keep doing their thing.

Regardless of the law or whether it would be enforced or not, for POLITICAL and Public Relations REASONS, we are asking people NOT carry at the meeting tomorrow, legally or otherwise.

We are on the verge of something quite extraordinary.

We don't want any distractions that give the board a reason to question their position.

nhanson
11-17-2008, 7:19 PM
Regardless of the law or whether it would be enforced or not, for POLITICAL and Public Relations REASONS, we are asking people NOT carry at the meeting tomorrow, legally or otherwise.

We are on the verge of something quite extraordinary.

We don't want any distractions that give the board a reason to question their position.

Agreed!

enjoy

Gray Peterson
11-18-2008, 12:43 AM
Sheriff Hutchens,

Undoubtedly you are getting a tremendous amount of
email on the subject so I will try to be a little
different.

Your new requirements would be constitutional under
the 14th amendment if it were not for the existence
of PC12031 and PC626.9. Ask your attorneys if you
need a better explanation of what these laws do, but
in essence, they ban the loaded carrying of firearms
(which is a separate statute banning concealed carry
of pistols).

Within 3 months, there will likely be incorporation
of the 2nd amendment against California (the case is
called Nordyke v. King). This would subject your
department to a significant risk of a lawsuit, as
well as the possibility that there will be "open
carry defense walks" through neighborhoods in Orange
County. Would you not rather give people concealed
weapons licenses for personal protection, or would
you rather have hundreds of "man with a gun calls"
when people start exercising their statutory and
constitutional right to open carry, causing a
tremendous amount of wasted time and manpower for
your department, as well as the local police
departments?

Come on, Sheriff Hutchens, I know that you're from
Los Angeles and you personally disfavor guns, but
tell me that you're not politically suicidal enough
to force people to open carry for their personal
protection in urban California?

Tell me, Sheriff, do you have confidence that every
single one of your deputies will not cross the line
with a "MWAG" call on an lawful open carrier, that
they will not felony stop an open carrier, or commit
other civil rights violations? Are you willing to
bet your qualified immunity on that?

The people you're revoking and not renewing licenses
from are pretty upset, angry, and I'm willing to bet
a lot of them will react by open carrying legally.
Any unlawful police stops for open carry after
incorporation will result in lawsuits against you
personally, and against your department. Do you
really want to risk that? Do you not understand
that your actions
today, doing this, will trigger "open carry" marches
through Orange County?

After incorporation is in effect, your department
and every other agency that issues CCW's will be
under a quite uncomfortable federal court microscope
since PC12031 and PC626.9 exists. You can either
comply with the 14th amendment and Article 1,
Section 1 of the California Constitution by issuing
licenses to gain exemption from PC12031 and PC 626.9
for anyone who applies, or you have open carry
marches in your county.

Your choice.

-Lonnie Wilson

CC: Orange County Board of Supervisors

Gray Peterson
11-18-2008, 12:51 AM
Dear Mr. Wilson:

Orange County Chairman of the Board of Supervisors John Moorlach asked
me to respond to your e-mail to Sheriff Hutchens, which you copied to
our office. I am responding because, while I am the Supervisor's Chief
of Staff, my career has been in legal education. I am the former
Associate Dean of Whittier Law School and an Adjunct Professor at
Chapman Law School. I designed the bar preparation program at Whittier,
and I am doing the same at Chapman, and I teach, among other subjects,
Constitutional Law.

The essence of your e-mail is your contention that Sheriff Hutchens'
decision to enforce her discretion whether to grant or deny Carry
Concealed Weapons (CCW) permits violates the United States Constitution
and California law. With respect, you are incorrect. In our view, the
Sheriff's policy is consistent with State and Federal law.

You cite Nordyke v.King, a Federal 9th Circuit Court of Appeal decision,
to support your view that the Second Amendment applies to the states
through the incorporation doctrine. This case was decided originally in
2003. The 9th Circuit held that the Alameda County ordinance banning
possession of loaded firearms on County property did not violate the
Second Amendment because of its view that the Second Amendment protected
only a collective right. Under the Heller decision, discussed below,
that would not be correct, since in Heller the Supreme Court held the
right is an individual right. Nordyke is now once again before the 9th
Circuit, which has requested further briefing in light of Heller.
However, as discussed below, that does not mean that laws limiting the
possession of loaded concealed weapons are invalid.

First, there is some question as to whether the Second Amendment is
indeed incorporated through the 14th Amendment to apply to the states,
as opposed to just the Federal Government. The Supreme Court has held
that only those rights enumerated in the Bill of Rights that are
"essential to liberty" are incorporated to apply to the states. Three
older U.S. Supreme Court cases held that the Second Amendment was not
incorporated to apply to the states. The latest of these was Miller v.
Texas, 153 U.S. 535 (1894). Whether this holding is still valid in light
of the Heller holding that the Second Amendment referred to a
pre-existing right of individuals to possess and carry weapons for
self-defense and defense against tyranny is problematic.

However, even assuming arguendo that the Heller decision presages a
holding that the Second Amendment is incorporated to apply to the
states, it did not seem to invalidate all gun regulations, and certainly
did not invalidate laws limiting CCW permits.

The United States Supreme Court, in the recent Heller decision, applied
the Second Amendment to invalidate a law, enacted pursuant to D.C. home
rule, that barred gun ownership in the District of Columbia.

In Heller, Justice Scalia, writing for the majority of the U.S. Supreme
Court, stated that, "In sum, we hold that the District's ban on handgun
possession in the home violates the Second Amendment, as does its
prohibition against rendering any lawful firearm in the home operable
for the purpose of immediate self-defense. Assuming that Heller is not
disqualified from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must issue him a license to
carry it in the home." This is a fairly limited holding on the scope of
the Second Amendment.

Moreover, Justice Scalia also wrote in that opinion, "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. See, e.g., State v. Chandler, 5 La. Ann.,
at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent 340, n.
2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884).
Although we do not undertake an exhaustive historical analysis today of
the full scope of the Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms."

Thus, it is reasonably clear that laws granting law enforcement the
discretion to issue permits limiting the carrying of a concealed weapon
is consistent with the Second Amendment and thus does not violate
Federal law, even if the Second Amendment were incorporated through the
14th Amendment

Penal Code Sections 12050(a)(1)(A), 12050(a)(1)(D), and 12050(a)(1)(E)
set forth the requirements for issuance of a concealed weapon license:
good moral character; good cause; residency or business within the
County; completion of a course of training. In the event an applicant
meets these requirements, the Sheriff "may issue to that person a
license to carry" a concealed weapon. Penal Code Section
12050(a)(1)(A)(i).

"Good cause" is rarely defined. However, the courts have held that good
cause is not satisfied merely by meeting the minimum statutory
requirements, see, Gifford v. County of Los Angeles, 88 Cal. App. 4th
801,806, 106 Cal. Rptr. 2d 164,168 (2001) (mere statement that all
conditions under which a CCW had been previously issued remained the
same was insufficient statement of good cause, and good cause is in
addition to the other requirements under Penal Code Section 12050).

The California Attorney General, in Opinion No. C.R. 77/30 I.L., stated,
relying in part on Salute v. Pitchess, 61 Cal. App. 3d 557, 132 Cal.
Rptr. 345 (1976), that a determination of "good cause" under Penal Code
Section 12050 includes: (1) experience and training in the use of
firearms, (2) the applicant's physical and mental stability, (3) that
danger to and from third parties would not be increased by the issuance
of the permit, and (4) whether the threat to the applicant is as real as
the applicant asserts. In determining this fourth factor, the Sheriff
should inquire whether there is a clear and present danger to the
applicant, spouse, family, or employees. Finally, even if the danger or
threat is manifest, the Sheriff should determine whether the danger or
threat could be significantly alleviated by alternative means of
security, and whether the danger or threat could in fact be lawfully
mitigated by the applicant obtaining the CCW.

In Gifford, supra, the Court of Appeal upheld the police department
denial of a license. It stated: "Section 12050 gives 'extremely broad
discretion' to the sheriff concerning the issuance of concealed weapons
licenses (Nichols v. County of Santa Clara (1990) 223 Cal. App. 3d 1236,
1241 [273 Cal. Rptr. 84] and 'explicitly grants discretion to the issuing officer
to issue or not issue a license to applicants meeting the minimum statutory
requirements.' (Erdelyi v. O'Brien, 680 F.2d 61, 63 This discretion must be exercised in each individual case. 'Itis the duty of the sheriff to make such an investigation anddetermination, on an individual basis, on every application undersection 12050.'" Gifford v. City of Los Angeles, supra, 88 Cal. App. 4th at 805, 106 Cal. Rptr. 2d at 167-68.

The Court further held that the burden of showing good cause is with the
applicant, and that "courts may exercise a very limited review of a
public agency's action, and may merely determine whether the agency's
action was arbitrary, capricious, or entirely lacking in evidentiary
support." Id., 88 Cal. App. 4th at 805, 106 Cal. Rptr. 2d at 168.

Gray Peterson
11-18-2008, 12:52 AM
Accordingly, any challenge to the Sheriff's policy of requiring a
stringent showing of good cause before granting a CCW permit will fail.

Moreover, she may exercise the same discretionary standard in deciding
whether to revoke current CCW permits issued by her predecessor.

Revocation is addressed in two places in Penal Code Section 12050. Under
Section 12050(e), the Sheriff is required to revoke a licensee if: (1)
the Department of Justice notifies the Sheriff that the licensee is
either being treated for a mental disorder or has communicated a threat
of physical violence against an identifiable victim; (2) the licensee
has been adjudicated as a danger to others as a result of mental
illness; (3) the licensee is a convicted felon; or (4) the licensee has
been convicted of a violent crime.

Under Section 12050(f)(4)(B), a CCW "may not be revoked solely because
the licensee moves to another county."

Only one case has ever discussed the power to revoke a CCW. In Nichols
v. County of Santa Clara, supra, the Court of Appeal held that "a county
sheriff has discretion to revoke a license to carry a concealed firearm
issued pursuant to Penal Code section 12050

In connection with such revocation, the sheriff is not required to
hold a 'due process hearing,' because the licensee has no
constitutionally protected "property" or other interest in such a
license." Nichols, supra, 223 Cal. App. 3d at 1239, 273 Cal. Rptr. at
85.


The Court reasoned that, "Just as Penal Code section 12050
contains no meaningful restrictions on the sheriff's discretion to deny
a license [citations omitted], it contains no express restrictions on
the sheriff's discretion to revoke a license." Id. at 1244, 273 Cal.
Rptr. at 89. While, as the Court noted, the statute as written at the
time did not even address revocation (subsections (e) and (f) were added
in a 1993 amendment), Section 12050(f)(4)(B), by stating that a CCW "may
not be revoked solely because the licensee moves to another county,"
suggests that it can be revoked, presumably for good cause. Thus, we
believe that it is a reasonable, and appropriate, interpretation of the
current law to state that the Sheriff has the broad discretion to review
and revoke existing CCW permits for a lack of good cause. As noted by
the Court of Appeal in Nichols, supra, 223 Cal. App. 3d at 1244, 273
Cal. Rptr. at 89, "The power to license ... implies the power to
revoke."

As a side note, we believe that, in light of the public disclosures of
evidence suggesting that, in the prior Sheriff's Administration, CCW
permits may have been issued to persons who did not meet the statutory
qualifications in exchange for contributions, it was consistent with the
carrying out of the Sheriff's official duties to investigate whether the
CCW permits issued by her predecessor while he was Sheriff were issued
for legal "good cause."

You cite Penal Code Sections 12031 and 626.9 (without explaining what
they concern) to argue an undefined right to carry a concealed weapon.
Penal Code Section 12031(a)(1) sets forth the elements of the crime of
"carrying a loaded firearm." Specifically, "A person is guilty of
carrying a loaded firearm when he or she carries a loaded firearm on his
or her person or in a vehicle while in any public place or on any public
street in an incorporated city or in any public place or on any public
street in a prohibited area of unincorporated territory." Penal Code
Section 12031(a)(2) specifies the criminal penalty (felony or
misdemeanor) depending on the circumstances under which the crime is
committed. Nothing in the section allows unrestricted carrying of a
concealed weapon. Indeed, Penal Code Section 12031(a)(2)(F) explicitly
recognizes that the carrying of a concealed weapon is a limited
privilege, by stating that the penalty for carrying a loaded firearm is
imprisonment for one year, a fine of $1000, or both, where "the person
is not listed with the Department of Justice pursuant to Section 11106,
as the registered owner of the pistol, revolver, or other firearm
capable of being concealed upon the person." Moreover, Section
12031(b)(6) explicitly exempts "persons who are authorized to carry
[concealed weapons]" under Section 12050 from the coverage of Section
12031. Since Section 12050 is the section that vests authority and
discretion in the Sheriff whether to grant or deny permits for CCW,
Section 12031 explicitly recognizes the validity of Sheriff Hutchens'
exercise of her discretion in granting or denying CCW permits.

While Section 12031 also allows possession of a loaded firearm in other
limited circumstances, those are, indeed, limited: lawful possession on
the premises of the person's business (Section 12031(h)); possession
while hunting (Section 12031(i)); possession while in immediate, grave
danger, where immediate is the "brief interval before and after local
law enforcement has been notified of the danger" (Section 12031(j)).
Accordingly, Section 12031 recognizes, and does not limit, the Sheriff's
discretion in granting or denying CCW permits.

Penal Code Section 626.9 is likewise unavailing. It is the "Gun-Free
School Zone Act of 1995," and prohibits the possession of a firearm in a
school zone. Concealed weapons are addressed twice in the statute: once,
in providing that such weapons are permitted ONLY if they are unloaded
and in a locked container or within a locked trunk of a motor vehicle
(Section 626.9(c)(2); and in providing for an enhanced sentence if a
person possesses a concealed weapon in a school zone (Section
626.9(f)(2)(A)(iii)).

You also briefly allude to California Constitution, Article I, Section 1
("All people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy"). That section has never been
interpreted to grant an unfettered right to carry a concealed weapon,
and, of course, Penal Code Section 12050 has never been held to be in
violation of this provision of the California Constitution.

Rather than threatening the Sheriff with "open carry marches," it may be
more beneficial for current CCW holders to assist our new Sheriff, in a
respectful and professional manner, in developing an Orange
County-specific definition of good cause that is consistent with the
Attorney General opinion and is satisfactory to all parties.

Very truly yours,

Prof. Mario Mainero
Chief of Staff
Chairman John M.W. Moorlach
Orange County Board of Supervisors

Gray Peterson
11-18-2008, 1:07 AM
Hey, is there any way I can upload a .doc file somewhere? My response to Mainero is rather lengthy. If you have the free space, please PM me a login and password so I can upload it via FTP. Thanks.

bulgron
11-18-2008, 8:40 AM
It's fascinating how the bureaucracy doesn't see the bar moving on 2A law. They apparently only look at what the state of things is today and completely ignore what might be the state of things in just a few months.

This is how come the bureaucracy keeps making decisions that from our point of view are arrogant and, frankly, stupid.

Basically, Mainero is saying that because Heller didn't address the right to carry arms in public, and because no one has yet said that the 2A is incorporated, then there's nothing at all for the county to be worried about. He also doesn't seem to understand what open carry marches are all about. Mainero is either a damn fool or he's lying. Since I don't think you get to be an Associate Dean of a law school by being stupid, I assume what he's doing is lying.

I have little doubt that Sheriff Hutchens is going to pay a heavy cost, both politically and in court, over her current CCW policy. The question is, can what happens to Hutchens (especially in court) translate into leverage against all the other anti-freedom Sheriff's and CLEOs around California?

I think the next 18 months are going to be really interesting as incorporation occurs and subsequent legal challenges ramp up in the courts.

One things for sure: if I was a Sheriff for one of the non-free counties in California, I'd be stocking up on Tums....

ocean
11-18-2008, 9:08 AM
You also briefly allude to California Constitution, Article I, Section 1
("All people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy"). That section has never been
interpreted to grant an unfettered right to carry a concealed weapon


Perhaps it's about time it did.

What would he suggest I defend my life and liberty with?