Saturday, May 17, 2014

San Diego Sheriff tries to Dodge Responsibility for Gun Permits

On the first of May, the Ninth Circuit ordered  that Appellee William Gore, the San Diego Sheriff, respond to the State of California request to intervene in the Peruta case.  Peruta is the case where the Ninth Circuit ruled that Sheriff Gore had to issue concealed carry permits to the public for general self defense.   The order is on hold because  of the request to intervene.  Currently, the Sheriff only issues permits if the applicant demonstrates a unique need under  “circumstances that distinguish [him] from the mainstream,”.  This is commonly referred to as a "may issue" policy.

Sheriff Gore, when ordered to respond, sent a letter to the court.  From the letter:
Motions to Intervene.

Appellee believes that the Attorney General is the appropriate intervenor in this case because the panel opinion finds California’s legislative scheme regarding the carrying of handguns unconstitutional. Appellee requests that the Court grant the Attorney General’s Motion to Intervene. Appellee takes no position on other intervenors.

This case is not moot. Appellee has not changed his policy or procedures for the issuance of concealed carry licenses. All current applications that do not meet the existing policy are being held without action, pending final direction from the Court or the Legislature.

 The problem with this response is that it argues directly against fact.   The Sheriff is claiming that Peruta found the California "legislative scheme" to be unconstitutional.   It did not.   It found the Sheriff's policies of refusing to issue concealed carry permits to be unconstitutional.  No one is claiming that Sheriff's do not have the authority to issue permits, except Sheriff Gore.    Numerous other Sheriffs in California issue permits on a "shall issue" basis.  No one else is making the argument that they do not have the power to do so, except Sheriff Gore.   From the Peruta decision:
The power to grant concealed-carry licenses in San Diego County is vested in the county sheriff’s department. Since 1999, the sheriff’s department has required all applicants to “provide supporting documentation” in order “to demonstrate and elaborate good cause.”
What Sheriff Gore, through counsel, is saying, paraphrased from the legalese sent in response to the court order:

Its not my fault!  I am only following orders (the law)!  I do not have a choice, so do not hold me responsible!  

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

The responsibility is directly that of the Sheriff's department, and to some extent, the County.   Because the Sheriff is an elected official, the county cannot order him to do what they say, and the Sheriff is the chief executive officer for  the Sheriffs department.   The Sheriff is trying to deny all responsibility for the issuance of concealed carry permits in San Diego, when the law clearly makes him the responsible authority to issue the permits.

It is an election year, and we might expect a song and dance from an elected official who wants to muddy the waters as to what his policy is, especially when the policy is as unpopular as that of "may issue" concealed carry.  It seemed that Sheriff Gore had not decided when I wrote this article in February.  

Now that the court order has forced the Sheriff respond, it is clear that he will refuse to issue concealed carry permits on a shall issue basis until some legal authority orders him to do so.   He has the authority to do otherwise.  He simply refuses to use that authority.  

Sheriff Gore would like voters to believe that he does not have a choice.   That posture is simply false. 

The Ninth circuit is still deciding whether or not to take the decision to an "en banc" panel of the Court.

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