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View Full Version : PC 12050 read wrong... Legal advice needed


Eagle Eyes
04-07-2011, 9:16 PM
Hi all,

First off I would kindly ask that those who are not members with legal experience in gun cases please hold off on comments ....... I would really like to see what the lawyers on Calguns think and not have to read pages of comments to find them.

So if you all could PLEASE :D wait until some of them reply I would greatly appreciate it. Ok now onto the thread ....

(@ Gene and the few other legal minds here)

First off the part of PC 12050 I call into question:

12050. (a) (1) (A) The sheriff of a county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E), may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person in either one of the following formats:

Ok if you look at the red highlighted text you can see that the first listed and third listed requirments have the phrase "the person applying" (some of you are now saying but there is 4 but since there is a "and" with no comma after the (D) it is still part of the same thought) in the beginning parts of them. If you look at the highlighted green text the 2nd listed requirement does not have that stated anywhere between the commas.

The importance to this is that this part of PC 12050 as well as paragraph (B) is the law INSTRUCTING the Sheriff/CLEO what they are legally suppose to do before issuing a CCW. The key thing to look at is that the law is instructing the Sheriff/CLEO what "the person applying" needs to provided but the 2nd listed requirement does not.

After reading this and consulting some english professors who specialize in "legal speak" they believe that the conclusion I have is valid.

The 2nd listed requirement that good cause exists for the issuance because it is between 2 commas with no (and) (as well as) (but) and the fact that 1st and 3rd listed requirements before and after the commas list " the person applying" that it is not a burden upon the applicant to provide good cause.

The mutal agreement between them and myself is that the 2nd listed requirement is what the Sheriff/CLEO must determine as a point of enviromental criminal cause in a general public way, not a individual case by case basis.

In other words a Sheriff/CLEO should be issuing CCWs based on things like a rapist is running loose in a certain area, high rates of crime and so on in a general way that is fair to the entire public. The fact that a Sheriff/CLEO is asking for individuals to provide a good cause violates PC 12050 as it seems quite clear that the Sheriff/CLEO is the one who must determine the "good cause" and not " the person applying". In fact in reading this in that fashion the Sheriff/CLEO finding " that good cause exists for the issuance " for one applicant would be required to apply that good cause to all aplicants equally as there is no wording in the 2nd listed requirement instructing the Sheriff/CLEO that it is a individual requirement.

So if the Lawyers here read PC 12050 in this manner I would appreciated good advice if they feel that everyone has been reading PC 12050 incorrectly all these years. If Gene and the rest of the legal minds here feel I am correct in this then I will plan to apply for a CCW in San Diego County and when asked to state a "individual good cause" I will state that they are violating PC 12050 by asking and requiring it for applying for a CCW..

PLease let me know your legal advice on this.

Thanks

Librarian
04-07-2011, 9:22 PM
The issuing authorities believe the the applicant must have a 'good cause'.

In Sacramento County, 'good cause' means 'self defense'. In other places, it means other things.

That's the point of the Calguns Foundation Carry License Compliance and Sunshine Initiative (http://calgunsfoundation.org/index.php/resources/ccw-initiative), to make 'good cause' mean something reasonable, not arbitrary.

Not being a lawyer, cannot and do not give legal advice.

CalBear
04-07-2011, 9:34 PM
Not a lawyer, but I have read a lot of the PC sections that relate to firearms, many times. I see where you're coming from. It helps me to parse the section vertically:

The sheriff of a county, upon proof

- that the person applying is of good moral character,
- that good cause exists for the issuance,
- that the person applying satisfies (D) and ... (E),

- may issue to that person a license to carry...

I think there are two problems with your argument.

1) I think it is reasonable to expand the second requirement to read:

- that good cause exists for the issuance [of a permit to carry] ... [to the person]

The word issuance refers to the issuance of a permit to that particular person throughout the rest of the section. It doesn't refer to the general practice of permit issuance.

2) The section still says the sheriff may issue, not shall issue. Because of this, I think the sheriff will still get an incredibly high amount of discretion in this state, save for some equal protection issues.

Librarian
04-07-2011, 9:46 PM
If Gene and the rest of the legal minds here feel I am correct in this then I will plan to apply for a CCW in San Diego County and when asked to state a "individual good cause" I will state that they are violating PC 12050 by asking and requiring it for applying for a CCW..


Just to add ...

San Diego is already somewhat difficult to get CCW in.

Have you heard about the San Diego lawsuit over CCW, Peruta (http://wiki.calgunsfoundation.org/index.php/Peruta_v._County_of_San_Diego)?

There's already a legal effort ongoing to get CCW issuance 'level' across the state. It would be helpful if you would contact that team at MICHEL & ASSOCIATES, P.C. 180 E. Ocean Blvd., Suite 200, Long Beach, CA 90802 Telephone: (562) 216-4444 before proceeding.

Eagle Eyes
04-07-2011, 10:00 PM
Yes Librarian well aware of the that case ......

Calbear .... but your statement of "reading into it" would work if the 1st requirment stated "the person applying" (comma) 2nd requirement (comma) 3rd requirment (and) 4th requirement with no other "the person applying" in the other requirements.

The fact I am pointing out is that "the person applying" is in a requirement before and after the 2nd requirement ... in any english form you choose it is read to mean a reference to the Sheriff's job. The Sheriff needs to determine what good cause exists in general and not to the individual (is there crime in the county that requires a firearm to defend against , yes/no as opposed to the individual stating because of crime I need a CCW for self defense) .... that the other requirements are based on a individual basis for issuance or denial.

The basic point is that PC 12050 does not require the individual applying to state good cause for issuance of a CCW.

Purple K
04-07-2011, 10:09 PM
Sounds similar to the argument about the placement of commas in the Second Amendment.

CHS
04-07-2011, 10:14 PM
Didn't we just have this exact same conversation in another thread?

The whole good cause thing just doesn't matter because at the end of the day, the Sheriff MAY issue.

He can look you in the eye and say "Sir, you have good cause. Excellent good cause, in fact, the best I've ever seen. However, since I MAY issue, I'm not going to. Have a nice day".

Mstrty
04-07-2011, 10:17 PM
You are correct, as printed "that good cause exists for the issuance" is the burdon of the Sheriff. Now go *itch slap them into minding your words.

snobord99
04-07-2011, 10:19 PM
Not legal advice (no competent lawyer would provide legal advice to random people over the internet), but, IMO, that's an incorrect reading.

The parts you highlighted, namely "upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E)," is a list. There is no "and" before "that good cause exists for the issuance" because in the English language, when you make a list, you do not put in the "and" after the comma until you've come upon the last item in the list. As "that good cause exists for the issuance" is only the second of three items, there is no "and" required. In fact, putting one in there would be grammatically incorrect.

The "list" is actually set off by "upon proof." As in upon proof
1) that the person applying is of good moral character,
2) that good cause exists for the issuance, and
3) that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E)

The problem is that you're reading "upon proof" into the first condition. If you read it that way and remove the first condition "upon proof that the person applying is of good moral character," the sentence would no longer make sense. However, if you remove the first condition without the "upon proof" (remove just "that the person applying is of good moral character"), the other two conditions remain intact and the sentence still makes sense (though grammatically incorrect).

Librarian
04-07-2011, 10:20 PM
The fact I am pointing out is that "the person applying" is in a requirement before and after the 2nd requirement ... in any english form you choose it is read to mean a reference to the Sheriff's job. The Sheriff needs to determine what good cause exists in general and not to the individual (is there crime in the county that requires a firearm to defend against , yes/no as opposed to the individual stating because of crime I need a CCW for self defense) .... that the other requirements are based on a individual basis for issuance or denial.

The basic point is that PC 12050 does not require the individual applying to state good cause for issuance of a CCW.

Beyond the 'may issue' character of the law, I believe one will be rather frustrated attempting to apply rules of English language construction to statutory law.

snobord99
04-07-2011, 10:21 PM
Beyond the 'may issue' character of the law, I believe one will be rather frustrated attempting to apply rules of English language construction to statutory law.

IMO, this one is actually pretty simple.

And I see the "lawyers only please" worked out real well :p

snobord99
04-07-2011, 10:24 PM
Didn't we just have this exact same conversation in another thread?

The whole good cause thing just doesn't matter because at the end of the day, the Sheriff MAY issue.

He can look you in the eye and say "Sir, you have good cause. Excellent good cause, in fact, the best I've ever seen. However, since I MAY issue, I'm not going to. Have a nice day".

This is the correct answer...but to the wrong question. The (wo)man wants to discuss the construction of the sentence, let's just humor him/her... ;)

hoffmang
04-07-2011, 10:25 PM
First of all, I'm not a lawyer - I just manage a bunch of them...

The correct statutory construction is:

"The sheriff of a county, upon proof that ... good cause exists for the issuance ... may issue to that person a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person."

Since it's "and" then if, in the sheriffs analysis (ignoring the 2A) good cause does not exist then he may not issue a license to carry.

-Gene

BigDogatPlay
04-07-2011, 10:26 PM
The whole good cause thing just doesn't matter because at the end of the day, the Sheriff MAY issue.

^^^This^^^

An applicant may fulfill all the requirements and still be denied simply because the issuance of the permit is at the sole discretion of the issuing authority. That's the bottom line. Arguing the pre-requisites at this point is, unfortunately, an exercise that won't get us anywhere I am afraid.

Change that "may" to a "shall" and then that resolves all, but we may never get there in California. Not in our lifetimes anyway. This is why the work that Calguns Foundation and a network of really sharp lawyers and dedicated citizens (Gray Peterson and the plaintiffs in Richards come immediately to mind) are doing is so vitally important.

Not a lawyerly opinion, but that of an old policeman who can read the law.

Librarian
04-07-2011, 10:57 PM
And I see the "lawyers only please" worked out real well :p

I've never seen a lawyer post 'legal advice'. Aside from professional/ethical issues, such a lawyer would not get paid!

snobord99
04-07-2011, 11:12 PM
I've never seen a lawyer post 'legal advice'. Aside from professional/ethical issues, such a lawyer would not get paid!

Very true...but it was really just a comment on the title of the thread.

Eagle Eyes
04-09-2011, 2:38 PM
well wasn't looking for a free go to court type advise ....more like would this be a argument a lawyer would think is reasonable enough to take the case if denied a permit for individual reasons of good cause.

As far as what is and is not read into laws ..... the whole reason for writing them is to be as clear as possible. Look at the whole 2nd ammendment arguement by the anti's ...they read into the 2nd ammendment meanings that are not actually writen in the 2nd, confirmed by Heller.

We already had one poster post how he got San Diego Sheriff's to remove the requirement for 3 references for a CCW Application ( I have confirmed that change as well). The fact that NONE of the lawyers, NRA, Calguns, or CRPA representing the Puerta case did not challange the illegal 3 references requirement is shocking to say the least. It is more shocking that a poster sending a e-mail got it changed and it should of been used.

Little stuff like this can show that the Sheriff's were doing illegal requirements and whould of helped to show the Sheriff's most likely was doing special favors if they are willing to also require something that they do not have the authority to do under PC 12050.

I will contact the lawyers to throw this at them but I think EVERY little bit we can chip away at the illegal ways things are being done the easier it will be down the road. That way they can say ... Well your Honor here is a list of all the illegal things they were doing and we had to sue them to follow the law......

The CLEO (May, Shall, only on the 5th Tuesday of the Month) issue a CCW permit really doesn't matter, we need to set up enough evidence to show a long history of not doing the legal and correct thing so that their arguements have less weight.

at least that what i understand about how most complex legal cases are fought ...could be mistaken

jtmkinsd
04-09-2011, 2:52 PM
well wasn't looking for a free go to court type advise ....more like would this be a argument a lawyer would think is reasonable enough to fight about it.

Pinning your case on grammar is, in many instances, futile. In the event you actually get a court to agree after much time and expense, it is an easy work-around for the legislature to nullify your argument. Then you're back at square one...and your wallet is considerably lighter.

The Shadow
04-09-2011, 3:05 PM
Change that "may" to a "shall" and then that resolves all, but we may never get there in California. Not in our lifetimes anyway.

Which is why I'm leaning more toward leaving this backward bastion of liberal intolerance, called California.

Eagle Eyes
04-09-2011, 3:12 PM
Pinning your case on grammar is, in many instances, futile. In the event you actually get a court to agree after much time and expense, it is an easy work-around for the legislature to nullify your argument. Then you're back at square one...and your wallet is considerably lighter.

I believe the Heller case was won primarily on the grammar and definitions of the words in the 2nd. Don't see the US congress putting out a new ammendment so far.

The CA budget being the mess it is I really don't think this would be a issue they would take up anytime soon.

To be a bit clear on this ......

I KNOW that it is a "MAY ISSUE" deal up to the Sheriff and will not get me a CCW.

The point is that the way the law is written and the way it is being enforced are different. We need to pound on them every time we find them doing things illegally. Who knows a court might find that that if the CLEO find good cause that it would have to be applied to all, not on a individual case by case basis as it is now.

HondaMasterTech
04-09-2011, 3:23 PM
By the time your case plays out, successful or not, California will be "shall issue". Give praise and thanks to all who act to restore and defend our rights.

Librarian
04-09-2011, 3:38 PM
I believe the Heller case was won primarily on the grammar and definitions of the words in the 2nd.

Not at all. Please read the case filings (http://dcguncase.com/blog/) for Heller. The decision is far more complicated than that.

The point is that the way the law is written and the way it is being enforced are different. We need to pound on them every time we find them doing things illegally. Who knows a court might find that that if the CLEO find good cause that it would have to be applied to all, not on a individual case by case basis as it is now.

I quite agree - as I said when I posted earlier:

That's the point of the Calguns Foundation Carry License Compliance and Sunshine Initiative (http://calgunsfoundation.org/index.php/resources/ccw-initiative), to make 'good cause' mean something reasonable, not arbitrary.

choprzrul
04-09-2011, 3:56 PM
I firmly believe that more should be done to frame this as CLEO good 'ol boys club denying the exercise of civil rights. What we are asking to exercise is just as much a fundamental right as speech, religion, and press to name a few. Our rights are arbitrarily being denied by an elected official and they are not being called on it. It is absolutely wrong what they are doing and I for one would like to see them called out as the bigots that they are.

We have an enumerated right, defined by Ginsberg for 'bearing' concealed, defined as an individual right for self defense in Heller, and incorporated against the states in McDonald. Yet, we have 58 sheriff's who may or may not allow us to exercise our rights. The fights being fought in the courts have in the past, and are now and in the future bearing fruit. We are winning in the courts, no question about it. However, I see us losing in the court of public opinion. The public sees this as a 'guns' question. We must find a way to reframe all of this to a matter of civil rights being denied. We must paint those who deny our rights as analogous to those who perpetuated Jim Crow laws in the south for a hundred years. Civil rights are being violated and those who are violating them need to be labeled accordingly.

.

jtmkinsd
04-09-2011, 4:03 PM
By the time your case plays out, successful or not, California will be "shall issue".

Would be nice...but IMHO this is wildly optimistic. There is going to have to be at least one, if not several, more trips to SCOTUS to "clarify" certain aspects of the 2nd amendment.

hoffmang
04-09-2011, 4:19 PM
I firmly believe that more should be done to frame this as CLEO good 'ol boys club denying the exercise of civil rights.

The error with that is that it would imply that if those who issue permits were just fair about it, that would be enough. We're saying something far more important. They don't even get to think about whether they issue or not - they have to issue unless something very specific is abnormal about the applicant.

-Gene

HondaMasterTech
04-09-2011, 5:33 PM
Would be nice...but IMHO this is wildly optimistic. There is going to have to be at least one, if not several, more trips to SCOTUS to "clarify" certain aspects of the 2nd amendment.

Nah.

N6ATF
04-09-2011, 5:40 PM
SCOTUS is going to make a ruling so comprehensive that they will never have to be bothered with 2A petitions further than a GVR (assuming all lower courts will constantly flip the bird to SCOTUS) again?