PDA

View Full Version : CCW: My conversation in the Office of the Los Banos Chief of Police


TheBundo
02-21-2009, 1:31 AM
2 or 3 days ago, I stopped by to talk to the Chief of Police (acting) of Los Banos about getting a CCW, based on my job of taking care of, and responding to emergencies at, over a half a billion dollars worth of property I take care of for one of the largest developers in the country. None of the current properties are in Los Banos, but the developer just abondoned 3 massive projects in Los Banos totalling in the high hundreds or 1000's of homes, and costing them over 2 million dollars before any construction started, so they are well known here. The emergencies I have to deal with involve theft of copper (often leading to major flooding in underground garages, and sometimes in broad daylight), as well as many other break-ins and threatening situations. The properties are primarily located in Santa Clara, Alameda, Santa Cruz, and a little in a couple of other counties.

The acting chief is named Dan Fitchie, and he is a very nice man. He is going to be retired soon (later this year - 30 years), and explained that the city's CCW policy is based on their liability worries. I believe him. I can't say enough about how nice the Los Banos Police Dept. is, and Acting Chief Fitchie may be a big part of the reason why, since he was a commander for many years. But I have no doubt he doesn't want citizens carrying in general, though he never specifically indicated that, but we ended up talking about the Open Carry situation, which he had the memo about. It's possible he is caught in the middle of a situation where Los Banos has been laying off police, and he is so near retirement, or he may be on the fence and not want to get involved at this point in his life. Based on his support for my statement about my carrying into empty large condo complexes (it's legal and justified, as I understood him), I didn't think he was anti-self defense, nor did he ever say anything that indicated that he thought the police could always protect people. Frankly, I thought he was a heck of a nice guy, and may be convinced to see things our way once he retires. But if not, I want to talk with him more about why he feels differently, and continue the discussion. I believe a lot of people, in ANY career, may not know what it is like for other people in THEIR career. Police sometimes think they are in the most dangerous job, but they clearly aren't. The guys hanging from helicopters working on high-voltage lines are clearly in a lot of danger, though a CCW won't help them a bit at work. But I digress..........

I left out some of the details of the danger I face, once he both acknowledged that he both knew who I worked for, and that I did indeed have a right to carry a gun when on those properties in performance of my duties, but that I wasn't likely to get a CCW through the city. It made me feel good, on one hand, that he said I do have the right to carry in the gigantic empty buildings that I need to go into to check things out, where burglaries occur regularily. The local police in these communities simply will not come out and "clear" a 120-unit empty condo complex everytime I want to go in to check things out, or fix a minor complaint the real estate agent has logged.

I have had 13 people arrested in the last 20 years, held by force of myself in 6 of them, and tricked the other 7 into thinking I was a bad-guy passerby until the cops came. But 1 of them attacked me visciously with firewood, doing no harm to me, as he missed me with every swing of the firewood he was trying to sell. But he was clearly dangerous. I was working for another property owner than I currently work with, and they twisted my arm hard to drop the charges, based on family pressure, because the guy had been kicked in the head by a horse as a child. I resisted, but finally relented. 1 month later, he killed his own mother, beating her to death with......... firewood. The property owner apologized profusely, as he hadn't believed me fully about how nuts the guy was. He gave me the clipping from the San Jose Merc. about him killing his mom, which I still have. And NO, I wouldn't have pulled a gun on him, any more than I didn't take him down and hurt him. He was clearly nuts, and I easily stepped back each time he swung. This is NOT a type of situation to pull a gun on someone, unless you are a squirt.

Anyway, I'm thinking of going to the city council, and if that doesn't work, running for mayor. I'm tired of so few making the decisions for so many, against their wishes.

Ford8N
02-21-2009, 4:31 AM
Liability has always been a major reason LEO's will not issue CCW's. But the counter to that is that the DMV issues drivers licenses, are they liable for all the death and mayhem caused by licensed drivers too? There are a lot of pro CCW law enforcement who would give them out but since they work for government, the governments legal council will not allow them to issue... or that's what they say...

tango-52
02-21-2009, 5:15 AM
Liability is the excuse a lot of agencies use, but it just doesn't hold up. They are specifically exempt from liability under state law.

1923mack
02-21-2009, 5:49 AM
For CCW your primary residence has to be in Sheriffs jurisdiction. If your primary residence is not in Los Banos the chief can not issue you a CCW no mater what your reason.

BobB35
02-21-2009, 6:16 AM
Liability has always been used as a crutch. You should ask him if he is familiar with Government code 818, 820, and 821. These all exempt cities and CLEOs from any liability in issuing permits. Can they be sued, yes, will they lose, no. So in effect either this CLEO doesn't know the law or is making stuff up because he doesn't believe people should be able to protect themselves, that is what cops are for. Oh that right GC 845 exempts them from even that responsibility.....Oh well welcome to CA.

FrankoUSA
02-21-2009, 6:38 AM
To bad you don't live in Kern County the last 2 sheriffs were great no problems on issuing ccw's the current one is good too

DDT
02-21-2009, 6:48 AM
Has there EVER been a case of a sheriff even sued for issuing a CCW that was later used in a crime or in self-defense? I really don't know. I'm fairly confident there has never been successful suit.

MP301
02-21-2009, 9:31 AM
Yeah, the first thing I would do is go back to him and say your research indicates that the Chief has no liability....show him the section in law, and ask him if he feels differently about issuing now....Or was the liability thing just an excuse for his negative 2A political views against those average folks taking care of themselves?

And for the OP, that little comment about someone being a squirt for pulling a gun on someone swinging firewood...well, I guess that would depend the circumstance, wouldnt it... You think the guy's mom might have wished she had pulled a gun on him prior to being beaten to death?

Sorry, its just a pet peeve of mine when someone makes a comment like that when it may, and most likely does not apply to everyone else....

CitaDeL
02-21-2009, 9:41 AM
The liabilty excuse is unfounded.

It sounds like this may be one of the departments that could be pressured into issuance when confronted with the choice between unregulated open carry and licensed concealed carry.

Budget concerns will certainly play a factor in the political arena with a reletively small community- less officers on patrol means two things to us 1) crime will certainly increase without adequate enforcement. 2) The remaining officers are not going to have the time or inclination to do (e) checks on open carriers or spend their resources detaining, arresting or incarcerating people acting within the law.

So its for them to decide- either issue licenses to conceal or tolerate exposed carry.

CCWFacts
02-21-2009, 10:47 AM
The acting chief is named Dan Fitchie, and he is a very nice man. He is going to be retired soon (later this year - 30 years), and explained that the city's CCW policy is based on their liability worries. I believe him.

You shouldn't. He said something which is untrue and he knows it.

I can't say enough about how nice the Los Banos Police Dept. is, and Acting Chief Fitchie may be a big part of the reason why

I would say they are not so nice, in that they don't want citizens to be able to defend themselves and they're giving a dishonest answer about why not.

Police sometimes think they are in the most dangerous job, but they clearly aren't.

That's right. It's not even in the top ten most dangerous jobs.

The guys hanging from helicopters working on high-voltage lines are clearly in a lot of danger, though a CCW won't help them a bit at work. But I digress..........

That's right. The most dangerous jobs are private pilot, farm worker, driver, and so on. Police work is not especially dangerous.

Anyway, I'm thinking of going to the city council, and if that doesn't work, running for mayor. I'm tired of so few making the decisions for so many, against their wishes.

Go for it. Make this a political issue.

As for liability - look, if the police had liability for performing their duties, they would be sued every single time they made an arrest or used force on a suspect. But they aren't sued for such things. They are very rarely sued in fact; just about the only way they can be sued is for violating civil rights.

Every police chief everywhere knows about California Government Code 820-823 (http://law.justia.com/california/codes/gov/820-823.html). That is the bit of government code that makes it possible for them to do any part of their job at all without being sued. Let's take a look at what it says:

A public employee [ie, a police chief] is not liable for an injury caused by his issuance, denial, suspension or revocation of, or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.

Gee, boys and girls, does that mean that police chiefs (public employees) do or do not have liability for any injuries caused by issuance of any permit or license?

They have black-and-white statutory protection, specifically in regards to issuance of licenses. The rest of that part of the Code talks about all the other sweeping liability protections they have. Their immunity protects them as individuals and also the government entities (the city in this case). Government Code 820-823 is why it's basically impossible to sue the police, no matter how outrageous their conduct, unless there is a civil rights violation involved. I can see how there could be a civil rights violation, and liability, in denying a permit, but not in issuing.

And they all know this. They would be unable to take any action or do their job at all with this strong statutory protection. I must say, this chief was lying. They do have liability risks for denials, and there have been successful suits over denials, but they don't have liability on issuance, just like they don't have liability for doing any of their other duties, unless they violate someone's civil rights.

I want everyone to understand, "We don't issue because of liability" is a knowingly dishonest statement when you hear some chief say it. If a chief does say it, ask him to explain Government Code 821.2, or show any example anywhere of a lawsuit against an issuing authority for issuing a permit. If you can find that, I would love to know about it because I've never heard of it.

Paladin
02-21-2009, 12:06 PM
Like others have posted, the presumption is that the Chief knows his job and the laws that pertain to discharging his legal duties. You should presume that he was lying to you, although that presumption is can be rebutted.

Ck out http://www.californiaconcealedcarry.com/
Be sure to read their Getting Started and FAQs pages:
http://www.californiaconcealedcarry....ngstarted.html
http://www.californiaconcealedcarry.com/faq.html

You may have a stronger Good Cause than some who have been granted CCW's from the Los Banos CoP. If so, you may have a 14th Amendment Equal Protection clause cause of action against the Chief.

"It's possible he is caught in the middle of a situation where Los Banos has been laying off police, and he is so near retirement, or he may be on the fence and not want to get involved at this point in his life." This is all good: after a forensic examination of his CCW files by TBJ, he may issue you a CCW to get you to just go away. If not, proceed w/the lawsuit and he still may give you a CCW (and $$$ settlement), to make you just go away! :thumbsup: :D

If, after reading both of those linked articles you decide to proceed, be sure to tell them "Paladin" from CGN sent you.

CCWFacts
02-21-2009, 1:05 PM
Like others have posted, the presumption is that the Chief knows his job and the laws that pertain to discharging his legal duties. You should presume that he was lying to you, although that presumption is can be rebutted.

Right.

And it's a very reasonable presumption, because, as I pointed out, police work of any kind would be totally impossible without these extremely strong statutory liability protections that they have. I've never been through POST but I assume that they spend a lot of time talking about liability issues, and the short summary of it is, "you don't have liability for doing your duties as an officer, unless you violate someone's civil rights." They couldn't even say "hello" to a suspect or write a parking ticket without getting sued if they didn't have these liability shields. If there's one area of law that cops must understand, this is it.

So it's safe to assume he's lying, unless he can come up with some examples of lawsuits over CCWs being issued.

With the millions of CCWs out there in the US, if there is a liability risk to the issuing authority, I'm sure someone could find a case or two. Crimes among CCW holders are very rare, but they're not zero. CCW holders have committed murders and so on. Any of those result in suits against the issuing authorities? If liability is a legitimate concern we should know of some cases.

Meplat
02-21-2009, 1:34 PM
Check again. As I recall the CLEO of the place where you spend your work day can also issue but it's only good in that jurisdiction. And very rarely done.


For CCW your primary residence has to be in Sheriffs jurisdiction. If your primary residence is not in Los Banos the chief can not issue you a CCW no mater what your reason.

CCWFacts
02-21-2009, 1:51 PM
Check again. As I recall the CLEO of the place where you spend your work day can also issue but it's only good in that jurisdiction. And very rarely done.

Temporary non-res CCWs exist in statute, but they are "never" issued.

TheBundo
02-21-2009, 1:52 PM
Check again. As I recall the CLEO of the place where you spend your work day can also issue but it's only good in that jurisdiction. And very rarely done.

That wouldn't be practical, as there are a dozen or so cities in 4 different counties, at the minimum, involved.

TheBundo
02-21-2009, 1:58 PM
And for the OP, that little comment about someone being a squirt for pulling a gun on someone swinging firewood...well, I guess that would depend the circumstance, wouldnt it... You think the guy's mom might have wished she had pulled a gun on him prior to being beaten to death?

Yes, you are right. For most of us guys, he wasn't much of a threat, if you were there, becuase he was so busy ranting and foaming at the mouth and not really swinging the firewood at me in a manner that made me fear for my life. I just keep stepping back and trying to reason with him as to why he couldn't sell firewood on the property (because it directly competed with a paying tenant, Safeway, which also sold firewood), but he was clearly very mentally ill and a Safeway employee called the police upon witnessing his attack.

nicki
02-21-2009, 6:42 PM
Los Banos is not a large city and it probably is hurting with revenues and a declining property tax role.

Since the Chief of Police was "nice", tell him you have done some research and you have good news for him, that he can issue CCW permits and he is protected from lawsuits.

Make a mention to him that you sent a copy to the city attorney to make sure you had you facts right and say so with a smile.

Tell him also that you will help him streamline the process so that he can gain additional revenue for the city. See what kind of reaction you get.

Let us know the results. Unless you are very articulate, don't push issues.
I would instead suggest you send PM's to various members of this board so that you can better pursue things.

Nicki

Gray Peterson
02-21-2009, 7:21 PM
What Nicki said.

cousinkix1953
02-22-2009, 1:44 AM
Let them dial 9-1-1 and die any way, if the police aren't in too big of a hurry to respond to a certain call. More than one rape and robbery victim has failed to collect damages from law enforcement agencies, which did not protect them from violent criminals.

They are not under any obligation to protect any certain tax paying citizen; but don't you take the steps to protect yourself either. This is the insane thinking of the ruling class elites. Yes they carry guns like Dianne Feinstein or travel with armed security guards like fatso Michael Moore. To hell with the little people...

tonelar
02-22-2009, 6:25 PM
I keep wondering if
you regret not pressing charges
against firewood wielding psycho mother killer.

The nice chief sounds like a veteran liar... 3 months from retirement. He will get a nice retired service badge so he can ccw the rest of his years. His is typical of the "I Got Mine" attitude prevalent with todays bureaucrats.

CCWFacts
02-22-2009, 6:36 PM
The nice chief sounds like a veteran liar... 3 months from retirement. He will get a nice retired service badge so he can ccw the rest of his years. His is typical of the "I Got Mine" attitude prevalent with todays bureaucrats.

Yeah.

DDT
02-22-2009, 8:23 PM
CCW should be a non issue for a non felon American Citizen. The Police should have no involvement at all. Well I guess not in a Fascist criminal oligarchy.

I should be thin, rich and better looking but reality is seldom what you think it should be.

1923mack
02-22-2009, 8:36 PM
The CCW for non County residents is only good for 30 days. Not much help.

TheBundo
02-22-2009, 8:43 PM
[QUOTE=tonelar;2074037]I keep wondering if
you regret not pressing charges
against firewood wielding psycho mother killer.QUOTE]

The mother called and begged me to drop charges, and the DA didn't seem especially interested in it (but would proceed if I wanted to). I doubt he would have served much, if any, time in jail, and he might have killed her later anyway. I had some regret at the time, and so did the shopping center owner who twisted my arm into dropping the charges. There was quite a campaign to get me to, and there were indeed extenuating circumstances (his brain injury).

CSDGuy
02-22-2009, 8:46 PM
The CCW for non County residents is only good for 30 days. Not much help.90 days. Valid only in that County. Not valid statewide. Still, it's not much help.

CCWFacts
02-22-2009, 8:50 PM
90 days. Valid only in that County. Not valid statewide. Still, it's not much help.

And I've never heard of it being issued.

It's the full CCW app process, all the waiting, all the fees, and it's valid only for 90 days in one county. I don't know if anyone ever applies or if sheriffs have any desire to issue them.

CSDGuy
02-22-2009, 9:21 PM
One was supposed to have been issued by (now retired) Sheriff Blanas, but somehow, it got issued as a standard 2 year - valid statewide, so it never was reported as a 90 day CCW. IIRC, the guy that got it was supposed to do the training and never did, so Sheriff McGinness revoked it. I believe that the deal was that he do the training and then he'd get the standard 2 year.

This was a couple years back.

TheBundo
05-08-2009, 11:16 PM
It's time to bring back this thread, in the wake of the Nordyke decision. For those new to it, re-read it carefully, then here is what happened on Friday the 8th.

I went in on Friday to get my fingerprints taken by the Los Banos PD for the Florida CCW. I asked if Acting-Cheif Dan Fitchie was in, because I wanted to challenge him on the assertion (he had made earlier, read the whole thread) that there was liability to the city for issuing CCW's. I looked up the state statutes (cited earlier in this thread), and indeed, there was NO liability to the city, any more than there was to the city for dog licenses, or the state for drivers licenses.

Dan Fitchie, you have my business card and my phone number, and you have a short time to get your pension. Do you want to LOSE IT for using an underground regulation (CALGUNS, help me out with the term if it's wrong). You ADMITTED TO ME that you told female real estate agents they couldn't get one. Also, CALGUNS, tell me what to request to get the NAMES of those who have permits, the GOOD CAUSE, and to get the names of contributors to every elected official. Let's compare the list in Los Banos, and the dates.

Mayor Tommy Jones, are you listening? Do you need another expense? I left my name, number, and complaint, with the city attorney's secretary on Friday morning. I also showed her a photo of me with Alan Gura, and I showed the lady who fingerprinted me (for my Florida non-resident CCW) the same photo, and told everyone where I stand on being BS'ed

7x57
05-08-2009, 11:30 PM
I'll repeat again what I heard about a conversation with a city CoP who had the non-liability situation pointed out to him. He replied that if they were sued over something someone did with a CCW they issued it would cost a pile of money to go to court anyway, even with a sure win, and then he'd have to explain to the city council that he'd spent all that money because he issued a CCW.

IOW, he's in the same situation we are. We have legal rights we can't afford to assert. He has an immunity he can't afford to rely on. I don't think that will change until we create a liability for *not* issuing (or get the Sykes court to bring the whole mess crashing down, of course). The good news is that if we did that, there are probably plenty of chiefs who would start issuing because they don't care about much more than what they have to tell the city council.

7x57

DDT
05-08-2009, 11:37 PM
It's time to bring back this thread, in the wake of the Nordyke decision. For those new to it, re-read it carefully, then here is what happened on Friday the 8th.

I went in on Friday to get my fingerprints taken by the Los Banos PD for the Florida CCW. I asked if Acting-Cheif Dan Fitchie was in, because I wanted to challenge him on the assertion (he had made earlier, read the whole thread) that there was liability to the city for issuing CCW's. I looked up the state statutes (cited earlier in this thread), and indeed, there was NO liability to the city, any more than there was to the city for dog licenses, or the state for drivers licenses.

Dan Fitchie, you have my business card and my phone number, and you have a short time to get your pension. Do you want to LOSE IT for using an underground regulation (CALGUNS, help me out with the term if it's wrong). You ADMITTED TO ME that you told female real estate agents they couldn't get one. Also, CALGUNS, tell me what to request to get the NAMES of those who have permits, the GOOD CAUSE, and to get the names of contributors to every elected official. Let's compare the list in Los Banos, and the dates.

Mayor Tommy Jones, are you listening? Do you need another expense? I left my name, number, and complaint, with the city attorney's secretary on Friday morning. I also showed her a photo of me with Alan Gura, and I showed the lady who fingerfrinted me the same photo, and told everyone where I stand on being BS'ed

I'm not sure this path will get you what you want but at least you are doing something. Getting the info and lighting a fire under the pols isn't bad by any stretch. Please talk with "The Right People" before you actually file a lawsuit though. (The Sykes petition might make a good template if/when it comes to that)

The tool for getting the info on CCWs issued/denied by your county/city is the California Public Records Act (PRA) Here is a page from 2001 with PRA info and forms for CCW specific requests. http://www.ninehundred.net/~equalccw/superprar.html


Might try contacting the city clerk for campaign funding info, she should be able to direct you to the right place:
We are located at:

City Hall
520 J Street
Los Banos, CA 93635.
209-827-7000
City Clerk - Lucy Mallonee
cityclerk@losbanos.org

TheBundo
05-08-2009, 11:44 PM
I'm not sure this path will get you what you want but at least you are doing something. Getting the info and lighting a fire under the pols isn't bad by any stretch. Please talk with "The Right People" before you actually file a lawsuit though. (The Sykes petition might make a good template if/when it comes to that)

The tool for getting the info on CCWs issued/denied by your county/city is the California Public Records Act (PRA) Here is a page from 2001 with PRA info and forms for CCW specific requests. http://www.ninehundred.net/~equalccw/superprar.html

Thanks, DDT, I wish we had a chance to talk in Santa Clara that day. The CA PRA is like the Freedom of Information Act in Ca , right? I can't wait to request that stuff, and see how the few people that have CCW's match up, date-wise, with their contributions to elected officials. Then we are looking at Michael S. Carona issues. Jail time...............

CCWFacts
05-08-2009, 11:53 PM
I'll repeat again what I heard about a conversation with a city CoP who had the non-liability situation pointed out to him. He replied that if they were sued over something someone did with a CCW they issued it would cost a pile of money to go to court anyway, even with a sure win, and then he'd have to explain to the city council that he'd spent all that money because he issued a CCW.

I still do not buy that as an excuse. Here's why: Their immunity in such matters is black letter law (http://en.wikipedia.org/wiki/Black_letter_law). They don't need to spend a pile of money fighting it; it's just the same as any of the numerous frivolous lawsuits they get hit with every year. They are sued all the time and all these suits (except those that have civil rights elements) are frivolous and bounce off the armor of 820-823.

Ok, yeah, issuing a permit could result in yet another frivolous lawsuit. The same applies to every single arrest they make, every single time they apply force to a suspect, every time they tow a vehicle or issue a ticket, or perform any of their other statutory duties. And they do those actions without spending a lot of time hand-wringing and meditating about being sued over them. They just go ahead and do them, secure in their immunity.

IOW, he's in the same situation we are. We have legal rights we can't afford to assert.

IANAL but I don't think it's the same situation at all. I keep looking for any example of lawsuit against an issuing authority over the actions of a permitee. I have never heard of such a thing, and if there was one, it would be a frivolous suit, just like all the other frivolous suits they get. How often does the DMV get sued for the actions of a drunk driver?

He has an immunity he can't afford to rely on.

I really don't think it's that way. They couldn't ever use force, or do any of their duties if that immunity were anything less than bulletproof against almost all claims (the big exceptions are civil rights or criminal misconduct).

Oh and as of now, there is a civil rights aspect to CCW issuance. Not one that has been established in court but at least it is now established that the right to bear arms is a civil right, so when they deny a permit today, they are entering the one area that does allow a plaintiff to penetrate their immunity: civil rights issues.

Until someone can show me some evidence to the contrary, I will continue to believe that "we don't issue due to liability" is both an excuse, and a knowing, intentional lie. Their denials have nothing to do with protecting the city from liability. In fact their denials are now exposing their cities to risks of unknown magnitudes, whereas issuance comes with utterly bulletproof immunity.

Sinixstar
05-08-2009, 11:58 PM
It sounds like this is just a matter of - this guy is coming up on his retirement, and he just doesn't want to rock the boat right now.
Based on how you said the first conversation went, it sounds like he personally doesn't much care - but he's looking out for his ability to drink High Life and grill burgers for the rest of his life.

To some extent, I can't say I entirely blame him. Unfortunately he is but a simple cog in a much bigger machine. I don't blame individuals in situations such as his as much as I blame the corruption of the machine that forces people like him to act in such a way. That's not the way it's supposed to work. Not how we want it to be, not how the founding fathers wanted it - and probably not the way he wants it either. It would be nice to have someone that would stand up on principle, but in a situation like his - i can at least understand the fact that he has to look out for himself.

TheBundo
05-09-2009, 12:03 AM
I still do not buy that as an excuse. Here's why: Their immunity in such matters is black letter law (http://en.wikipedia.org/wiki/Black_letter_law). They don't need to spend a pile of money fighting it; it's just the same as any of the numerous frivolous lawsuits they get hit with every year. They are sued all the time and all these suits (except those that have civil rights elements) are frivolous and bounce off the armor of 820-823.

Ok, yeah, issuing a permit could result in yet another frivolous lawsuit. The same applies to every single arrest they make, every single time they apply force to a suspect, every time they tow a vehicle or issue a ticket, or perform any of their other statutory duties. And they do those actions without spending a lot of time hand-wringing and meditating about being sued over them. They just go ahead and do them, secure in their immunity.



IANAL but I don't think it's the same situation at all. I keep looking for any example of lawsuit against an issuing authority over the actions of a permitee. I have never heard of such a thing, and if there was one, it would be a frivolous suit, just like all the other frivolous suits they get. How often does the DMV get sued for the actions of a drunk driver?



I really don't think it's that way. They couldn't ever use force, or do any of their duties if that immunity were anything less than bulletproof against almost all claims (the big exceptions are civil rights or criminal misconduct).

Until someone can show me some evidence to the contrary, I will continue to believe that "we don't issue due to liability" is both an excuse, and a knowing, intentional lie.

I agree with you, CCW, but I don't want to lose 7x57, as I have seen repeatedly that he has a keen legal brain. We need to discuss these things, but please, folks, never take it personal or feel it is about winning or losing an arguement. We can do that in the "Other Forum" arguing about music or whatever.

CCW, I agree with you totally on the lawsuit issue. I offer an even better (I think) example in this case, in that we are dealing with a CITY issuing a license or permit. The example is a DOG license. Has a city ever been sued for a pit bull's actions, maybe killing a baby, because they gave a license to that dog? I don't think so....

CCWFacts
05-09-2009, 12:06 AM
To some extent, I can't say I entirely blame him. Unfortunately he is but a simple cog in a much bigger machine. I don't blame individuals in situations such as his as much as I blame the corruption of the machine that forces people like him to act in such a way.

I fully understand what you're saying.

However...


This is a matter of life or death. This is not like someone refusing to issue a building permit because he knows that the town elders don't want a bar to be built on Elm St. No, this is dealing with peoples' lives
And this is a civil rights issue. It's sort of like: "I'm going to arrest any black who drives on this side of town after 9pm because I know the rich property owners around here want me to do it and I don't want to risk my career over civil rights."

His not wanting to rock the boat may be understandable but it's somehow beyond the usual non-rocking-of-the-boat decision making that we must tolerate.

TheBundo
05-09-2009, 12:11 AM
I agree, and Dan was a very hospitable man. Everything I have ever seen or read, though, shows that the longer a man is a LEO, and the higher he gets, the more he plays the game the higher-ups want. Dan never disagreed with my right to protect myself, or carry my gun in the huge (60-unit) vacant buildings I am responsible for. Yet, I am totally exposed to criminal issues if I load my gun in my car, parked on the street next to the massive building, and walk accross the sidewalk and unlock the door. The only way I can do it is to carry my locked-up, unloaded gun into the darkness of the door I choose (tenatively) to enter the massive building by. Then I need to load inside that door, by flashlight.

This is so stupid I could just spit...........................

It sounds like this is just a matter of - this guy is coming up on his retirement, and he just doesn't want to rock the boat right now.
Based on how you said the first conversation went, it sounds like he personally doesn't much care - but he's looking out for his ability to drink High Life and grill burgers for the rest of his life.

To some extent, I can't say I entirely blame him. Unfortunately he is but a simple cog in a much bigger machine. I don't blame individuals in situations such as his as much as I blame the corruption of the machine that forces people like him to act in such a way. That's not the way it's supposed to work. Not how we want it to be, not how the founding fathers wanted it - and probably not the way he wants it either. It would be nice to have someone that would stand up on principle, but in a situation like his - i can at least understand the fact that he has to look out for himself.

TheBundo
05-09-2009, 12:18 AM
After re-reading your post, maybe I see your point. I may have mis-read it, and the rebuttal CCW gave. I think we're all on the same page here, and I totally need all your help. My plan is to get together with the city attorney, who is a private lawyer also (I guess it's a part-time job with the city). He was in court in Merced Friday, and never called back.

Next, I may go to Mayor Tommy Jones. And the newspaper to see if they have a "Woodward" or "Bernstein" type. This may need to go public, because they are skewing the numbers as to applications vs permits granted by disuaded people from applying.

I still do not buy that as an excuse. Here's why: Their immunity in such matters is black letter law (http://en.wikipedia.org/wiki/Black_letter_law). They don't need to spend a pile of money fighting it; it's just the same as any of the numerous frivolous lawsuits they get hit with every year. They are sued all the time and all these suits (except those that have civil rights elements) are frivolous and bounce off the armor of 820-823.

Ok, yeah, issuing a permit could result in yet another frivolous lawsuit. The same applies to every single arrest they make, every single time they apply force to a suspect, every time they tow a vehicle or issue a ticket, or perform any of their other statutory duties. And they do those actions without spending a lot of time hand-wringing and meditating about being sued over them. They just go ahead and do them, secure in their immunity.



IANAL but I don't think it's the same situation at all. I keep looking for any example of lawsuit against an issuing authority over the actions of a permitee. I have never heard of such a thing, and if there was one, it would be a frivolous suit, just like all the other frivolous suits they get. How often does the DMV get sued for the actions of a drunk driver?



I really don't think it's that way. They couldn't ever use force, or do any of their duties if that immunity were anything less than bulletproof against almost all claims (the big exceptions are civil rights or criminal misconduct).

Oh and as of now, there is a civil rights aspect to CCW issuance. Not one that has been established in court but at least it is now established that the right to bear arms is a civil right, so when they deny a permit today, they are entering the one area that does allow a plaintiff to penetrate their immunity: civil rights issues.

Until someone can show me some evidence to the contrary, I will continue to believe that "we don't issue due to liability" is both an excuse, and a knowing, intentional lie. Their denials have nothing to do with protecting the city from liability. In fact their denials are now exposing their cities to risks of unknown magnitudes, whereas issuance comes with utterly bulletproof immunity.

CCWFacts
05-09-2009, 12:26 AM
I agree with you, CCW, but I don't want to lose 7x57, as I have seen repeatedly that he has a keen legal brain.

I also respect his analysis, and none of this is personal about him. I'm pretty sure he see that.

I just think in this case, he may be buying just a little bit of their excuse, when I think we shouldn't be buying any of it.

As you say, it's just like issuing a dog license, or (in my example) like the DMV issuing a DL. Yes, anyone can be sued over anything, but... that doesn't mean we all stay in bed all day long. For most things we go about our business normally, and for cities, they have extraordinary statutory protection. Except on civil rights violations. Like denying someone's 2A rights perhaps.

TheBundo
05-09-2009, 12:37 AM
Sorry if one of my responses looks goofy, I got mixed up in who I was replying to. But no need to beat a dead horse.

Is everyone in agreement that I should meet with the city attorney next, and go over the implication of Heller/Nordyke, etc., and the flaws in their denials/ underground regulations?

Or go straight to the records of CCW's, politial contributors, etc?

DDT
05-09-2009, 12:42 AM
And the newspaper to see if they have a "Woodward" or "Bernstein" type. This may need to go public, because they are skewing the numbers as to applications vs permits granted by disuaded people from applying.

Unless you find something supremely interesting in your PRAs, like the Chief's son having a CCW with weird sounding good cause don't expect the papers to care. They are probably anti-gun and are very unlikely to want to "expose" something like this.

That being said, this just popped into my head..... They may be willing to print something with a background of Sykes, other counties that do issue without legal repercussions (lots of rural counties, see http://www.calccw.com ) and what the potential waste of money the City/County is opening themselves up for by refusing to issue when they could easily avoid the whole thing by a judicious use of Police Discretion.


Oh, and don't forget to PRA the county CCW records too. The Chief of Police might send his son/wife/boyfriend/girlfriend/contributor to the sheriff in an effort to hide the quid pro quo or nepotism.

DDT
05-09-2009, 12:55 AM
Sorry if one of my responses looks goofy, I got mixed up in who I was replying to. But no need to beat a dead horse.

Is everyone in agreement that I should meet with the city attorney next, and go over the implication of Heller/Nordyke, etc., and the flaws in their denials/ underground regulations?

Or go straight to the records of CCW's, politial contributors, etc?

Do it in parallel. The attorney won't be able to do much for you and you'll want the records regardless. Plus you should let the attorney know that you will be filing the PRA as part of your due diligence on what claims you can make etc. (not too much detail and NOT threatening) He'll get the hint that if you are already pursuing legal avenues that you are serious. He'll also probably see a copy of your PRA request so a heads up is a good idea if you're on friendly terms and want to stay that way.

Kid Stanislaus
05-09-2009, 5:21 AM
I'll repeat again what I heard about a conversation with a city CoP who had the non-liability situation pointed out to him. He replied that if they were sued over something someone did with a CCW they issued it would cost a pile of money to go to court anyway, even with a sure win, and then he'd have to explain to the city council that he'd spent all that money because he issued a CCW. 7x57


Hogwash! The city attorney is on a SALARY, it does not cost the city one dime more for his services.

7x57
05-09-2009, 8:09 AM
I still do not buy that as an excuse.


I'm not saying you should, only that it seems to be a perception. Or, at minimum, an excuse. The source was Joel Friedman, so I take it at face value.


IANAL but I don't think it's the same situation at all. I keep looking for any example of lawsuit against an issuing authority over the actions of a permitee.


OK, perhaps I should rephrase it to simply say that there is the perception that it is the same, or at minimum that this is a slightly different and more sophisticated version of the liability excuse. He might even have not meant money, but just that the council would want to know why the CA had to spend half an hour getting it dismissed.

What is utterly obnoxious about this is not whether a de facto liability exists--suppose it does, in spite of the ironclad immunity and so on, and it isn't merely another version of the liability excuse. It is the fact that this is outweighing peoples lives. He's saying that if a few people end up dying, it's worth it to avoid having to get a case dismissed in court.

*That* is what needs to be crushed mercilessly with the Iron Fist of Justice. It is negligent homicide. It is evil.


Oh and as of now, there is a civil rights aspect to CCW issuance.


Oh, indeed. Very much indeed. :whistling:


Not one that has been established in court but at least it is now established that the right to bear arms is a civil right, so when they deny a permit today, they are entering the one area that does allow a plaintiff to penetrate their immunity: civil rights issues.


Oh, I'm absolutely hoping that as Nordyke sinks in this logic will start occuring to CLEOs, or to CAs and city councils. However, my guess is that someone is going to have to get publicly crucified in order for the dominoes to start falling, simply because they won't *really* believe they have to start respecting the 2A. They have a lifelong belief that it doesn't mean anything (and a well-founded one--we've never been able to use the 2A for anything before ninteen days ago) and a lot of emotional capital invested in keeping their heads in the sand.

However, they're mostly small fry and will cave quickly if they see someone's head on a pole, with exceptions like Chief Bratton. The people who will require repeated savage beatings are certain big-mouth, big-city mayors who believe they are entirely above the law, like those of certain unnamed, ah, windy and emerald cities. Not that I mean anyone specific like Richard Daly, Jr. or Michael Bloomberg or anything.

OTOH there is little I'll enjoy more than watching those beatings, so I say bring it on. :43:

:popcorn:

7x57

7x57
05-09-2009, 8:13 AM
The example is a DOG license. Has a city ever been sued for a pit bull's actions, maybe killing a baby, because they gave a license to that dog? I don't think so....

Look, it's all highly suspect given that no one has even cited a case where it happened, but do remember that we're talking about G U N S here. People behave irrationally when the subject comes up. In their minds, there is some voodoo surrounding guns and so everything looks different.

IOW, your problem is you're rationally analyzing an irrational behavior which doesn't make any rational sense in the first place. :rolleyes:

7x57

7x57
05-09-2009, 8:19 AM
Everything I have ever seen or read, though, shows that the longer a man is a LEO, and the higher he gets, the more he plays the game the higher-ups want.

Remember there is a massive selection effect. The chief is a bureaucrat, not an officer, and so the only serious applicants are those who prefer being a bureaucrat to being a cop. And the only ones who actually make chief are *good* at being bureaucrats.

Now, the fundamental nature of a bureaucrat is conservative--keep things working, don't rock the boat--and focused on the bureaucracy--doesn't matter what anyone else needs or what the bureaucracy exists to do, you do what is in the interests of maintaining and expanding the bureaucracy.

What I'm saying is that it seems more or less impossible to for any other personality type to get into the position. And, BTW, being charming and seeming to be on your side is also a bureaucratic skill.

The only real exception is probably a small-town sheriff or chief, where the chief has to spend time on the street because there are only three deputies anyway. A long-time LA sheriff's deputy who moved to Wyoming described the difference in law enforcement in the little community where he lives: apparently they tell people that if you have trouble in the middle of the night, "just take care of it and we'll clean it up in the morning." :eek: :thumbsup:

7x57

valleyguy
05-09-2009, 8:26 AM
But 1 of them attacked me visciously with firewood, doing no harm to me, as he missed me with every swing of the firewood he was trying to sell. But he was clearly dangerous. I was working for another property owner than I currently work with, and they twisted my arm hard to drop the charges, based on family pressure, because the guy had been kicked in the head by a horse as a child. I resisted, but finally relented. 1 month later, he killed his own mother, beating her to death with......... firewood. The property owner apologized profusely, as he hadn't believed me fully about how nuts the guy was. He gave me the clipping from the San Jose Merc. about him killing his mom, which I still have. And NO, I wouldn't have pulled a gun on him, any more than I didn't take him down and hurt him. He was clearly nuts, and I easily stepped back each time he swung. This is NOT a type of situation to pull a gun on someone, unless you are a squirt.


I don't see why you wouldn't have shot him...

To quote Starship Troopers: "We shoot mad dogs, don't we?" :rolleyes:

But seriously, maybe if you had shot him (if you had been carrying), his Mom would have still been alive today.

7x57
05-09-2009, 8:38 AM
I just think in this case, he may be buying just a little bit of their excuse, when I think we shouldn't be buying any of it.


Just to be clear about a couple of things. First, I'm more or less just repeating what Joel Friedman reported, who was a participant in the conversation and who is nobody's fool.

Second, there is a big difference between buying that this is really a problem, let alone enough of one to count against giving a CCW to someone with reason to be afraid, and buying that this may be a perceived issue. Sure, it could be a simple lie. But it is easy to imagine plenty of minor inconveniences--for example, an anti-gun city council wanting to know why the anti-gun city paper ran a smear article about an incident with a CCW holder. That's plenty of excuse for an anti-gun chief to do what he'd really rather do anyway. Or go one better and sign a memorandum with the anti-gun sheriff and let *him* be the guy who actually says "no." You could have a whole series of antis passing the buck and gumming up the system until it gets to the sheriff's desk, and it seems that in California the sheriff is a little feudal lord and can't be touched for much of anything anyway (I think the phrase is he's safe "unless caught with a dead girl or a live boy").

The real problem is not whether such inconveniences exist and are the reason many chiefs don't issue. I don't even care much about what the answer is. The real problem is that they'll let people die because of it. That attitude needs to be crushed without mercy, and hopefully Sykes is the beginning of the crushing.

Also, the trivial nature of these excuses, even if they are invalid, leads me to believe that once we create the perception of risk in *not* issuing, a whole host of chiefs who are mild antis or just indifferent will follow the path of least resistance (remember, they're bureaucrats before they are anything else) and issue. That will free us up to attack the hardcores in LA and the bay area, and leave them exposed and more vulnerable than ever. If half the state is de facto shall-issue now, once the word gets out that the 2A means something then the hardcore cases will really stick out like a sore thumb and make our equal protection claims even clearer.

7x57

7x57
05-09-2009, 8:53 AM
I don't see why you wouldn't have shot him...

To quote Starship Troopers: "We shoot mad dogs, don't we?" :rolleyes:

But seriously, maybe if you had shot him (if you had been carrying), his Mom would have still been alive today.

"Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement."

I don't think we should second-guess TheBundo for showing restraint and mercy. He did the right thing in difficult circumstances. The subsequent murder is in no way his fault, and this is even clearer when we see that the victim and everyone else urged him to not even press charges.

As for second-guessing, do you have any idea how that would have played out in public opinion, given that the man had a mental disability? It would have been a disaster on so many levels. If he had shot the man he'd have been criticized by all, probably pilloried in the press, definitely portrayed as a dangerous gun nut who hated the mentally handicapped (and if the man was any liberal protected class, it would be a thousand times worse) and was just waiting for a chance to shoot someone, likely charged with murder, possession of an illegal firearm, mayhem, jaywalking, spitting on the streets, and necromancy. Surviving that, the mother would have sued him for ten million dollars in civil court for the loss of her wonderful, beloved handicapped son who "would never really hurt anyone," and probably for violating his civil rights as a handicapped person. The press would have kept the trials in the public view as part of a drumbeat for more gun control, because you know this just proves that gun owners are dangerous nutjobs who will kill when there is *clearly* no real danger.

TheBundo kept himself safe physically and legally and used no more force than necessary to do so. He did well, and we can't possibly second-guess him.

7x57

Rascal
05-15-2009, 9:25 PM
Wow! How did I miss this thread? Well if you want to run against Tommy Jones, I'll vote for you. As far as the Chief, he just doesn't want to rock the boat and therefore won't issue. I can't wait for him to retire.

nicki
05-16-2009, 7:11 AM
The Chiefs of all cities have the option of getting completely out of the CCW porcess by going "G".

Short summary, they issue no permits and send "EVERYBODY" to the sheriff.
That includes "councilmen, judges, DA's etc". If he issues ONE permit, he is in the CCW business.

What we need to do with Chiefs is either have them issuing or not issuing.

They do get alot of fees in the CCW process which should cover their processing unless they are really going overboard on checking applicants.

That could be the case if they are actually going out to people's houses, talking with neighbors, etc. etc.

What will get CCW is "Equality under the law".

We have a right to bear a functional firearm. Functional means "loaded".

The issue is will it be "Open" or will it be "Discreet.

Their choice.

Nicki

Ground Loop
05-16-2009, 2:34 PM
7x57 gets the How It Plays Out in The Real World award for May 2009.

More people need to think this through. If it's just me, I'd take a hell of a physical beating before subjecting myself to that kind of misery. It's a no-win situation.

RomanDad
05-16-2009, 3:32 PM
Liability is the excuse a lot of agencies use, but it just doesn't hold up. They are specifically exempt from liability under state law.

It just makes ya nuts, doesn't it?


The Chiefs of all cities have the option of getting completely out of the CCW porcess by going "G".

Short summary, they issue no permits and send "EVERYBODY" to the sheriff.
That includes "councilmen, judges, DA's etc". If he issues ONE permit, he is in the CCW business.

What we need to do with Chiefs is either have them issuing or not issuing.

They do get alot of fees in the CCW process which should cover their processing unless they are really going overboard on checking applicants.

That could be the case if they are actually going out to people's houses, talking with neighbors, etc. etc.

What will get CCW is "Equality under the law".

We have a right to bear a functional firearm. Functional means "loaded".

The issue is will it be "Open" or will it be "Discreet.

Their choice.

Nicki
This sounds oh so vaguely familiar.... :D

leadchucker
05-16-2009, 4:09 PM
I just got around to reading this thread. Informative, as usual. Thanks to CCWFacts for posting the actual, pertinent sections for easy reference back in February.

However, I did see one remark within the same post that seemed contradictory to the section under discussion.


They do have liability risks for denials, and there have been successful suits over denials, but they don't have liability on issuance.........

That seems to contradict the rest of that same section (821.1- just reposition the underlining):

821.2. A public employee is not liable for an injury caused by his
issuance, denial, suspension or revocation of, or by his failure or
refusal to issue, deny, suspend or revoke, any permit, license,
certificate, approval, order, or similar authorization where he is
authorized by enactment to determine whether or not such
authorization should be issued, denied, suspended or revoked.


It looks to me that they are not liable either way- at least that seems to have been the case, pre-Nordyke.

DDT
05-16-2009, 7:55 PM
It looks to me that they are not liable either way- at least that seems to have been the case, pre-Nordyke.

Well, if a chief/sheriff chooses to issue a permit there is no liability connected directly to the use of that permit as implied by the chief here.

Where there is liability is if the chief/sheriff issues on a corrupt basis, i.e. issuing to buddies and donors but not to average joes. Or if a sheriff chooses to simply NOT issue at all (or make applications available) which is an abuse of discretion because NOT exercising discretion is not a legal option.

Now, with Nordyke, there is the added possibility of a civil rights case being brought up.

SO, there is no liability (to the issuer) associated with illegal use of said permit and no one will file a lawsuit if they are issued a permit. But, someone denied a permit may well file a lawsuit that has merit based on the above.

HTH.

leadchucker
05-16-2009, 11:01 PM
But, someone denied a permit may well file a lawsuit that has merit based on the above.

HTH.

Yes, but the issue, I believe, was liability for injury resultant from a denial to issue.

When CCWFacts said "...but they don't have liability on issuance...", he was refering to section 821.1 which says, "A public employee is not liable for an injury caused by..."

So, by stating in the same sentance that "They do have liability risks for denials, and there have been successful suits over denials..." he was refering to the same section related to injury, not unfair practices.

I'm not disagreeing with you, but your point relates to an issue separate from the one I am questioning.

DDT
05-17-2009, 2:47 PM
Yes, but the issue, I believe, was liability for injury resultant from a denial to issue.

When CCWFacts said "...but they don't have liability on issuance...", he was refering to section 821.1 which says, "A public employee is not liable for an injury caused by..."

So, by stating in the same sentance that "They do have liability risks for denials, and there have been successful suits over denials..." he was refering to the same section related to injury, not unfair practices.

I'm not disagreeing with you, but your point relates to an issue separate from the one I am questioning.

I am fairly confident that you are misinterpreting CCWFacts statement but I will let him chime in as only he knows what he meant.

yellowfin
05-17-2009, 2:56 PM
I don't think I recall seeing it in the Sykes lawsuit, so I guess I'll ask: would it be much trouble to sue to get the denial part removed from 821.2? Has anyone ever challenged it, or is that in progress?