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View Full Version : May issue CCW vs legal liability?


gunsandrockets
05-02-2012, 12:37 AM
I thought of a gambit to attack may issue CCW policy that might be a new idea. At least a cursory search did not turn up any hits on the topic.

In general people who are well informed on the issue of armed self-defense are aware that Police departments have no legal obligation to provide protection to an individual, that the police can not be successfully sued for a failure to defend an individual member of the public.

So the police are free and clear when it comes to an act of omission, but what if it is an act of commission? What of "State-created danger" liability? See this interesting article...

http://www.policemag.com/Channel/Patrol/Articles/2010/06/Liability-for-Failure-to-Protect.aspx

With may issue CCW policy, the police agency responsible for determining issuance is by an act of commission deciding who can defend themselves with a firearm when away from home. Doesn't such an exercise of power open up the police agency to legal liability? What happens if a person who was denied a permit is injured or killed, in part because of the lack of the most effective means of self-defense? Because the police kept it away?

To use an analogy, the difference between police failing to protect someone from violence vs failing to give permission for a CCW permit, is the difference between not throwing a life-jacket to a person who is drowning vs taking away a life-jacket from a person who eventually drowns.

NoJoke
05-02-2012, 4:29 AM
Further....

What if you are not a prohibited class gun owner.
What if you applied and were denied for a CCW

couple that with

The police are not responsible for your personal protection.

Gee - if said person were ever attacked or killed? Seems like a HUGE can o worms to me for the sheriff.

OleCuss
05-02-2012, 5:17 AM
No current liability under your legal theory.

The LEA denial of a carry license does not create a circumstance where you are at increased risk of harm/injury.

The right to carry a concealed firearm is not yet explicitly (and generally) recognized by the legal system.

So whatever opinion you and I may have as to what is right/wrong/Constitutional - at this time the courts will not award damages under the theory(ies) you reference.

I consider this to be quite unfortunate as being able to sue an LEA or LEO when there is an egregious violation of our rights would do much to clean up the system. But I think you should not hold your breath waiting for this to be righted.

SilverTauron
05-02-2012, 5:18 AM
The police can counter with the argument that the applicant either didn't meet the standards for the carry permit,or that denying the permit was in the better interests of public safety.

There is court precedent that establishes that Law Enforcement is not obligated to protect the individual.That ruling could be applied to CCW issuance;its not LEs responsibility to grant you a means to protect yourself,just like they don't need to speed to your home to stop a crimnal from assaulting you.

NoJoke
05-02-2012, 5:31 AM
There's the legal argument and there's practical common intelligence.

Although legally the theory may not hold water today it is quite obviously and explicitly how the nation was founded.

OleCuss
05-02-2012, 5:53 AM
Well, actually, one could argue that the theory holds water today. But it will not be accepted by the legal system today so there's no point pursuing it in a court of law at this time.

Someday, maybe.

And watch Seattle. If someone were killed or injured after they were disarmed by the Seattle mayor you could see a shift on this one. There is case law of direct interest to this situation and there may even be pre-emption issues. We could see developments of great interest there.

BobB35
05-02-2012, 6:35 AM
I thought of a gambit to attack may issue CCW policy that might be a new idea. At least a cursory search did not turn up any hits on the topic.

In general people who are well informed on the issue of armed self-defense are aware that Police departments have no legal obligation to provide protection to an individual, that the police can not be successfully sued for a failure to defend an individual member of the public.

So the police are free and clear when it comes to an act of omission, but what if it is an act of commission? What of "State-created danger" liability? See this interesting article...

http://www.policemag.com/Channel/Patrol/Articles/2010/06/Liability-for-Failure-to-Protect.aspx

With may issue CCW policy, the police agency responsible for determining issuance is by an act of commission deciding who can defend themselves with a firearm when away from home. Doesn't such an exercise of power open up the police agency to legal liability? What happens if a person who was denied a permit is injured or killed, in part because of the lack of the most effective means of self-defense? Because the police kept it away?

To use an analogy, the difference between police failing to protect someone from violence vs failing to give permission for a CCW permit, is the difference between not throwing a life-jacket to a person who is drowning vs taking away a life-jacket from a person who eventually drowns.

Police and govts have NO duty to protect you and they can not be sued for issuing or not issuing you a LTC. It's all up to the good will of the LEOs as to whether you have the ability to defend yourself outside of your home.

Here's a doc I found online that shows all the State Laws on this issue.

Librarian
05-02-2012, 8:35 AM
See also the wiki -- http://wiki.calgunsfoundation.org/California_License_to_Carry_Concealed_Weapon_%28CC W%29#Liability_of_Issuing_Authority

bohoki
05-02-2012, 8:36 AM
can you sue the dmv for giving a license to a reckless driver?

NoJoke
05-02-2012, 8:43 AM
can you sue the dmv for giving a license to a reckless driver?

I think it would be more accurate to ask, "can you sue the dmv for not providing a license to a legal and fully qualified applicant?"

I would hazard a guess, that yes, one could sue and easily win the case.

Also, does the DMV do background checks for past reckless behavior? Cuz, you do know taht automobiles are far more dangerous than guns. :chris:

Librarian
05-02-2012, 9:29 AM
can you sue the dmv for giving a license to a reckless driver?

I think it would be more accurate to ask, "can you sue the dmv for not providing a license to a legal and fully qualified applicant?"

I would hazard a guess, that yes, one could sue and easily win the case.


I would say 'no' to either proposed situation; agencies and their employees are insulated from the consequences of acting and not-acting.

Kukuforguns
05-02-2012, 9:41 AM
Sorry, the Legislature dealt with this issue long ago and immunized itself and its agents for liability arising from the issuance or denial of any license:
Gov't Code 821.2. Issuance, denial, suspension or revocation of permit, license, etc.
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.And:
Gov't Code 820.2. Discretionary acts
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. These statutes are the same reason why it is total BS when a California issuing authority refuses to issue a CCW on the ground that the authority wishes to avoid liability for issuing a CCW.

NoJoke
05-02-2012, 9:44 AM
; agencies and their employees are insulated from the consequences of acting and not-acting.


A gov't that's of the people, by the people and for the people are insulated from the people?

Yes - I know legally you are in the right but then again, is it right? No.

Sometimes I wonder if ever buying my first gun was a big mistake or the best thing I've ever done.
Prior to gun ownership, I was happy in my bubble - life seemed fine. Then I purchased this evil item. I should correct myself, I never considered it evil but I was led to that conclusion with all the drama of the process. Proving things. Filling out paperwork. Waiting. Then I made the mistake of wondering why - which led me to this place.

Then it happened.

I learned about the constitution, founding fathers and the way my world, as created under that document is to be run. I learned how really far off course we are.

From the Matrix movie, can I go back and take the red pill? :rolleyes:

NoJoke
05-02-2012, 9:49 AM
These statutes are the same reason why it is total BS when a California issuing authority refuses to issue a CCW on the ground that the authority wishes to avoid liability for issuing a CCW.

And there you go. They can't have it both ways. Wouldn't that be where they get themselves?

radioman
05-02-2012, 5:43 PM
CCW and driving a car are the same thing in California, ( NOT A RIGHT)..... and this is the problem, if it is not a right, you have no right to sue for it.

NoJoke
05-02-2012, 6:18 PM
CCW and driving a car are the same thing in California, ( NOT A RIGHT)..... and this is the problem, if it is not a right, you have no right to sue for it.

Again I ask, are there background checks for possible irresponsible driving habits?

Further, isn't CCW a right that is unconstitutionally ignored by CA? ...so actually it is a right granted by God.

radioman
05-02-2012, 6:27 PM
Again I ask, are there background checks for possible irresponsible driving habits?

Further, isn't CCW a right that is unconstitutionally ignored by CA? ...so actually it is a right granted by God.

The State dose not see it as a right, in CA you have no right to a gun, no right to self defense, but anyone can drive a car.

Kukuforguns
05-03-2012, 9:25 AM
Again I ask, are there background checks for possible irresponsible driving habits?

Further, isn't CCW a right that is unconstitutionally ignored by CA? ...so actually it is a right granted by God.

1) Yes, there is a background check to acquire a driver's license in California. The application (http://www.dmv.ca.gov/teenweb/permit_btn1/dl44sample.pdf) for a driver's license explicitly requests whether you have used a different name and whether you have had a license revoked and whether you have any medical conditions that may be incompatible with driving. That right there is a background check.

2) The U.S. Supreme Court's decision in Heller (http://supreme.justia.com/cases/federal/us/554/07-290/opinion.html) suggests there is no constitutional right to carry a concealed weapon. It noted that the right to bear arms is not unlimited and that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," and cited 19th Century cases that held that there was no right to carry concealed weapons. What may happen in California is that concealed carry becomes the only lawful method to bear arms, at which point the state may be required to make CCW licenses shall issue in order to preserve the constitutional right to bear arms.

Baja Jones
05-03-2012, 9:42 AM
What may happen in California is that concealed carry becomes the only lawful method to bear arms, at which point the state may be required to make CCW licenses shall issue in order to preserve the constitutional right to bear arms.

So the almost certain passage of AB 1527 may be the bridge to California becoming a shall issue state. The law as proposed is aimed at making it illegal to UOC a long club specifically for personal defense. It exempts LEOS and hunters.