illegal CCW policies: Sac County Sheriff’s Dept.

Anti-2A  Deputy Kris Palmer wants to be your next Sheriff
A look behind the curtain

On October 26, 2017, Sheriff’s Candidate Kris Palmer distributed an unsolicited spam email to Sacramento CCW license holders asking them to contribute to his political campaign.  Allegations are pending that Palmer used his official position within the Sacramento County Sheriff’s Department to obtain confidential and non-redacted CCW licensee contact information for the purpose of using that information in his political campaign to get elected as the next Sheriff.  Departmental policy prohibits the use of Agency equipment and records for private personal use by its employees, so that its employees do not abuse their level of access through misappropriation of public resources for personal gain.

Over the past year, under Sheriff Scott Jones, the Sacramento Sheriff’s Department has been illegally revoking CCW permits from CCW permit holders without cause or any adherence to “due process”.  California State Penal Code §§26150-26225 exclusively controls the application for, issuance, maintenance, and revocation of CCW permits.  While running for Sheriff for a second term, and while running for Congress, Scott Jones’ pressured many CCW licensees to donate to his political campaigns, and continue donating.  For many of the donors who stopped contributing to Jones’ campaigns, their CCW license was arbitrarily and capriciously revoked without cause.

The purpose for Jones’ liberal CCW license issuance policy was as a political tool to entice gun owners to support Jones’ election.  But after Sheriff Scott Jones lost his race against Ami Bera for Congress, hundreds of CCW permits started being revoked without cause.  The official department reason was “no longer qualified”, but ranged from unverified hearsay evidence to a mere claim that a CCW license holder was less than fully cooperative with any law enforcement officer (in that officer’s opinion, which included refusal to disclose privileged information or bringing into play individual constitutional protections for privacy or against self-incrimination).  Most of the revocations had nothing to do with any actual law being violated, and the token “appeal” of the revocation offered by the Department did not even allow the CCW licensee to know what they were accused of doing ‘wrong’ in the first place.  How can you appeal a claim if you don’t know what the claim is?

No authority exists for the Sheriff to create new laws or expand upon existing laws.  While discretion exists to issue a CCW, there is no authority to revoke a CCW permit without cause.

Federal due process protections also pass directly through the State and onto local public agencies.  But what does the law say on CCW revocation?  In California, the only two instances which empowers an issuing agency to revoke a CCW are conviction, and change of residency, namely:
Penal Code §26195 which states “(b) (1) A license under this article shall be revoked by the local licensing authority if at any time either the local licensing authority is notified by the Department of Justice that a licensee is prohibited by state or federal law from owning or purchasing firearms, or the local licensing authority determines that the person is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.
Penal Code §26210 which states:
(a) When a licensee under this article has a change of address, the license shall be amended to reflect the new address and a new license shall be issued pursuant to subdivision (b) of Section 26215.
(b) The licensee shall notify the licensing authority in writing within 10 days of any change in the licensee’s place of residence.
(c) If both of the following conditions are satisfied, a license to carry a concealed handgun may not be revoked solely because the licensee’s place of residence has changed to another county:
(1) The licensee has not breached any of the conditions or restrictions set forth in the license.
(2) The licensee has not become prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.
(d) Notwithstanding subdivision (c), if a licensee’s place of residence was the basis for issuance of a license, any license issued pursuant to Section 26150 or 26155 shall expire 90 days after the licensee moves from the county of issuance.
(e) If the license is one to carry loaded and exposed a pistol, revolver, or other firearm capable of being concealed upon the person, the license shall be revoked immediately upon a change of the licensee’s place of residence to another county.

However, through the making of prohibited underground policies, which are unpublished and failed to adhere to any rule making process, and through this Executive Branch agency functionally performing a Legislative Branch function which granted itself additional powers by expanding upon the scope of the legislative statutes, and Sacramento County Sheriff’s Department has not only violated Separation of Powers but also exceeded its authority to revoke CCW licenses by creating new undefined limits to its statutory authority.

The governing common law (case law) for CCW permits/licenses in California has been Nichols v. County of Santa Clara (1990), which held an issuing authority has absolute discretion to issue, deny, or revoke CCW permits, and that no “due process” was required at any level.  This is, of course, a violation of federal due process laws which require any government decision which has any finality must adhere to some level of due process, but that due process for one type of proceeding did not require the same level of due process for an unrelated proceeding.  Still, every proceeding requires at least some due process.  Nichols v. County of Santa Clara (1990) 223 Cal. App. 3d 1236, 1243.

Federal law requires due process for all agency procedures and decisions affecting government employees and members of the public. Federal government grants limited power to states but all federal requirements pass through to states.  Accordingly, a State government has no constructive power to grant itself new authorities which are without federal protections (Calder v. Bull).

After Nichols, in 1991, the California Court of Appeals issued a conflicting but absolutely worded finding to Nichols which held “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Fortich v. WCAB (1991) 233 Cal. App. 3d 1449   [Emphasis added]

No elected official can claim to be a “friend” to the 2A community, nor is he a “supporter” of constitutional rights, if he arbitrarily restricts 2A usage and denies constitutional rights to due process,  a fair opportunity to be heard, to face one’s accusers, and be able to mount a credible defense to allegations.  As Sheriff Scott Jones’ handpicked replacement, and as someone who has abused his authority by accessing confidential department records for prohibited campaign usage, we should expect no better from Kris Palmer if he is ever elected.

The Sacramento County Sheriff’s Department needs a complete leadership overhaul.  It is going to take someone from the outside to come in and clean up the department.  An insider, who has been part of the problem, can never be expected to bring about the changes necessary to bring forth the integrity, transparency, and equality to the Department that Sacramento taxpayers deserve.

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