Yolo County Becomes Focus of Nationwide Gun Debate in Federal Lawsuit

Sheriff-PrietoA federal court on Thursday heard arguments in a case where gun-rights advocates have challenged the courts to determine how much discretion California’s law enforcement officials have in issuing concealed weapons permits.

County Sheriffs, the plaintiff argue, who handle the bulk of these situations, must issue permits to anyone who completes a training course and has no mental health problems or criminal background.

In so doing, they are challenging a policy by Yolo County Sheriff Ed Prieto who argues that Yolo county residents “must prove they have a reason to carry a concealed weapon, such as a threat to their safety.”

Attorney Alan Gura from Alexandria, Virginia, representing the plaintiff, argues that this “gives Prieto arbitrary discretion over a fundamental right to bear arms guaranteed in the U.S. Constitution”

Sheriff Prieto, through his attorney, has responded that California law permits the sheriff to set standards and he has done so to avoid any sort of arbitrary decision-making process.

The case was originally filed in 2009 under the caption of Sykes v. McGinness, where John McGinness was the sheriff of Sacramento County at the time and was compelled to issue carry licenses for self defense.  Sheriff McGuiness modified his policy on the issuance of carry permits, and that led to the complaint being dismissed and the case being renamed and filed against Yolo County and Sheriff Ed Prieto in Richards v. Prieto.

The plaintiffs argue, “In addition to the successful completion of a background check and training, the issuance of a permit to carry a handgun is left to the discretion of the issuing authority, based upon that authority’s determination of whether the applicant “is of good moral character, [and] that good cause exists for the issuance of the permit.”

They allege that one of their plaintiffs, a law-abiding citizen ,in March 2009 “contacted Defendant Prieto’s office to inquire about the process for obtaining a permit to carry a handgun. Defendant Prieto’s office advised Plaintiff Richards that the desire to have a gun available for self-defense would not constitute “good cause” for the issuance of the permit, and that his application would be a “futile act.”

The suit continues, “Plaintiff Richards was further advised that as a matter of policy, his application would not be considered unless he first applied to the Chief of Police in the City of Davis, where Plaintiff Richards resides.”

According to the suit, Chief Landy Black denied the application in April 2009, stating, “An evaluation and comparison of our current services to available resources has forced us to discontinue processing and issuing CCW (Carry Concealed Weapon) licenses. I apologize for the inconvenience this action will cause you.”

Somewhat comically, he was then referred back to Sheriff Prieto.

According to Attorneys Bruce Kilday, Peter Halloran and Serena Sanders, representing the County and Sheriff Prieto, “Plaintiffs admit that they are ‘not entitled to carry a concealed weapon just because they want to carry one.’ “

Yet they continue, “They challenge the constitutionality of Defendants’ policy which declines to issue a permit to do just that: carry a loaded, concealed weapon in public without any legitimate basis for the belief that self-defense is needed.”

In essence, the plaintiff’s argument is, “(1) there is no constitutional right to carry concealed weapons; (2) but, there is a right to carry weapons for self-defense; (3) we are not challenging the open carry laws; (4) thus, we must be allowed to carry concealed weapons.”

“Because the “right” Plaintiffs’ seek is not constitutionally protected, the remaining arguments fail,” the attorneys for the defense continue.

The Plaintiff’s here argue that Sheriff Prieto’s policy “goes beyond those set by most California sheriffs by requiring, for instance, that applicants have ‘good moral character’ and submit three letters of reference.”

They argue, “His seven-page policy limits permits to people who have been victims of a violent crime, those who can document threats of violence, and business owners who carry large amounts of cash. He will not give permits to people who cannot prove they face a credible threat of violence.”

“These are arbitrary standards,” Gura told U.S. District Court Judge Morrison England Jr.

In most counties, if a person asserts an interest in self-defense, they get a permit, “and everyone’s happy,” Gura said.

The AP reported yesterday, “The Second Amendment Foundation, Calguns Foundation and three individuals sued Prieto in 2009, alleging his policy violates not only the Second Amendment, but First Amendment free speech rights and Fourteenth Amendment equal protection guarantees.”

Sacramento attorney Serena Mercedes Sanders, representing Yolo County and Prieto, disagrees.

“Guns are not the same as speech,” she said. “Shooting off one’s mouth and shooting guns have very different consequences.”

Attorneys for the defense have argued, “Plaintiffs’ contention that First Amendment framework should apply to gun regulation challenges under the Second Amendment defies logic. No court has held that the marketplace of ideas and the marketplace for guns are entitled to the same protections.”

“The recent spate of lawsuits filed in California and other states was triggered when the U.S. Supreme Court  ruled that citizens have a right to own guns in their homes. Sanders and England said no court has ruled that the same right extends to carrying weapons outside the home, and England expressed skepticism that the same freedom should apply,” according the AP story.

“Like most rights, the Second Amendment is not unlimited,” the judge said.

“The words ‘keep’ and ‘bear’ are separate words,” countered Gura. ” ‘Keep’ is what you do at home. ‘Bear’ is what you do in public.”

“[Judge] England fit the Sacramento case into the national debate that arose after U.S. Rep. Gabrielle Giffords was shot in the head and six others were killed in Arizona during a political event in January,” the AP continued.

“Had there been five concealed weapons there and everyone started pointing and everyone started shooting … wouldn’t that have created a more dangerous situation?” the judge asked rhetorically during the 30-minute hearing.

According to the AP, “[Judge] England said he will consider Thursday’s arguments before issuing a written ruling. The judge also disclosed that he has had a concealed weapons permit himself, issued by Sacramento County’s sheriff about 10 years ago.  That will have no bearing on his ruling, [Judge] England said: ‘This case will turn on the Constitution.’ “

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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25 Comments

  1. E Roberts Musser

    I’m assuming the real argument here hinges on the issue of “self-defense”. Plaintiff argues he should be able to determine whether he needs to carry a gun for self-defense. The sheriff is arguing that the sheriff should be the one to determine if anyone needs to carry a gun for self-defense. Am I getting that right?

  2. Roger Rabbit

    Not arbitrary? What determines need? The Sheriff has no problem issuing DA Reisig his CCW? The sheriff has issued several Deputy DA’s CCW. I would bet they did not have to justify it, they just asked for it.

    Once again pay to play. If you are in the Government then we will give you the right to protect yourself, if you are not, then you much justify and then we get decide if we agree with your justification.

    Reisig needs the Sheriff to issue his gun permit and the Sheriff needs Reisig to support his Deputies when they shoot someone in the back. Seems like a fair trade.

    Politics as usual. Pay to play. If you donate enough to the Sheriff’s campaign I am just guessing your permit will be authorized. If you don’t, the odds are your permit will not be authorized. Someone will say prove this. I say you prove it does not happen.

    If you donate to DA Reisig’s campaign he may put in a good word for you with the Sheriff and your odds of getting approved will be increased.

    If you are just joe good citizen that wants to be prepared to protect your family, then you have justify. No….. it is not arbitrary at all.

    Blanket Justification should be as follows:
    The sheriff just said he is laying off Deputies and response will go down. The Sheriff is talking about closing jails and the state is letting prisoners out due to cost. Crime is up in Yolo and cops are down. DA Reisig sees a gang member behind every Mexican, gang crime is up, the DA’s office is constantly justifying grants due to high crime stats, the courts are over worked from all the crime/cases and all county services are being cut or decreased. What they should be asked is why would anyone not be wanting to get a permit?

  3. craised

    I own a handgun and I am trying to think of a situation where I would strap my handgun under my arm before I left the house. Maybe to a football game? No. A trip to the grocery store? No. Maybe trips to the Davis Post Office? Well, perhaps. The line sometimes gets very long and slow, and I am not referring to the line inside the post office. How about political rallies at UCD? Nope, they don’t trip my trigger.
    I think we should really focus our attention on balancing our city and county budgets FIRST. Then discuss the moral arguments on both sides of a loaded gun.

  4. Roger Rabbit

    ERM: Have you heard of circumstantial evidence. By proving an objective list for issuing the permit, you show that the other cannot be happening. You put in standards and rules that prevent “the negative” from happening.

    Happens all the time, a witness said he was not home, you prove where he was by other means or prove he was not where he said he was. Your comment is just “lawyer tricks” and fancy words to try and confuse the issue.

    When you lawyer start using proof it is really funny;

    Prove there is a God?
    Prove there is not a God?

    But wait, proof in criminal trail or civil trial since both are different or proof for you to believe that is different, how do you prove proof under what standard?

    With your logic both are negatives and the legal circular logic spins round and round.

  5. roger bockrath

    “[Judge] England fit the Sacramento case into the national debate that arose after U.S. Rep. Gabrielle Giffords was shot in the head and six others were killed in Arizona during a political event in January,” the AP continued.

    “Had there been five concealed weapons there and everyone started pointing and everyone started shooting … wouldn’t that have created a more dangerous situation?” the judge asked rhetorically during the 30-minute hearing.

    Well, Judge England sure let his anti-CCW prejudices show when he made that statement. There were, in fact, three individuals present at the Giffords shooting who were in possession of concealed carry weapons. All three stated that they were unsure about the origin of the shooting and held their fire. Perhaps, if one of those three had been closer to the shooter, some of the six innocents who died that day would be among us still.

  6. Superfluous Man

    Rabbit,

    “Not arbitrary? What determines need? The Sheriff has no problem issuing DA Reisig his CCW? The sheriff has issued several Deputy DA’s CCW. I would bet they did not have to justify it, they just asked for it.”

    Is it unreasonable for the chief law enforcement official in the county and DDAs to have concerns for their safety (ie self-defense)? When it’s your job to put these guys behind bars and royally screw up their lives (in the eyes of the offender), it can give one a reason to be a little concerned for their safety and the safety of their family.

    “Once again pay to play. If you are in the Government then we will give you the right to protect yourself, if you are not, then you much justify and then we get decide if we agree with your justification.”

    Assuming that the job of DA or DDA does not come with the threat of retaliation or harm at the hands of those they prosecute…can you prove that Reisig or any of the DDAs, whom you seem to believe have been issued CCWs for reasons unrelated to self-defense, have not received threats and that their loved ones have not?

    “Reisig needs the Sheriff to issue his gun permit and the Sheriff needs Reisig to support his Deputies when they shoot someone in the back. Seems like a fair trade.”

    Is it uncharacteristic for a sheriff to issue a CCW to a DA? So much so that Reisig had to resort to covering up a murder just to get it?

    “Politics as usual. Pay to play. If you donate enough to the Sheriff’s campaign I am just guessing your permit will be authorized. If you don’t, the odds are your permit will not be authorized.”

    That may very well be true. Would be interesting to find out who is getting the CCW and who’s not. How much money does Prieto even rake in during election time? I don’t know why he would need it.

  7. Superfluous Man

    Roger,

    “There were, in fact, three individuals present at the Giffords shooting who were in possession of concealed carry weapons. All three stated that they were unsure about the origin of the shooting and held their fire. Perhaps, if one of those three had been closer to the shooter, some of the six innocents who died that day would be among us still.”

    Perhaps, then again perhaps a scenario could exists that increases the number of innocent deaths had any of the three fired their weapons in an attempt to subdue the shooter. What of the marksmanship required for a citizen to receive a CCW in AZ?

    What happens when the bad guy starts firing, then one good guy draws his gun, then a second good guy draws down on the first good guy thinking he’s either the source of the initial discharge(s) or an accomplice, all the while now the first good samaritan CCW is now fearing the second good guy with a CCW is the or one of the bad guys and in a mess of confusion and fear they fire upon one another.

    They are now both dead and have also fatally wounded several innocent civilians, while in the mean time the bad guy resumes his indiscriminate shooting. Perhaps that’s possible?

  8. Mr Obvious

    This what if scenario is getting fun. We can run it like a story that the next person builds on. I’ll go first.
    [quote]
    when the bad guy starts firing, then one good guy draws his gun, then a second good guy draws down on the first good guy thinking he’s either the source of the initial discharge(s) or an accomplice, all the while now the first good samaritan CCW is now fearing the second good guy with a CCW is the or one of the bad guys and in a mess of confusion and fear they fire upon one another. [/quote]

    When the first good Samaritan falls to the ground a child who has never touched a gun seizes on the opportunity to be the hero. Not knowing what he’s doing he picks up the gun. Feeling a sure of power and importance now that he has a gun in his hand he take aim. He squeezes the trigger and bang, the gun goes off. Only he shoots his little brother in the back and kills him.

    See how silly this is. We can play what if all day. The fact remains that we will not know what might have happened. We do know that the three people with guns didn’t kill anyone.

    The fact remains that you are more likely to be killed by a drunk driver than a person with a gun.

  9. E Roberts Musser

    MO: “The fact remains that you are more likely to be killed by a drunk driver than a person with a gun.”

    I’m not a gun person, but even I can see the logic in this statement!

  10. Don Shor

    This is beginning to sound like high noon at the OK Corral. I do not have any confidence that there is any correlation between marksmanship skills and the desire for a concealed-weapons permit. I do not feel safer knowing that there are armed civilians randomly sprinkled through any crowd.

  11. Superfluous Man

    Mr. Obvious,

    “See how silly this is. We can play what if all day.”

    Evidently the jocularity of my comment was not so obvious.

    “The fact remains that we will not know what might have happened. We do know that the three people with guns didn’t kill anyone.”

    True, we do not know if fewer fatalities/injuries could have been avoided if the shooter were able to legally purchase ammunition magazines that limited the capacity to 10 rounds as opposed to 33.

    “The fact remains that you are more likely to be killed by a drunk driver than a person with a gun.”

    Which is a person more likely to be murdered by?

  12. Superfluous Man

    Don,

    “I do not feel safer knowing that there are armed civilians randomly sprinkled through any crowd.”

    Neither do I. I find it interesting that there are proponents whose responses to tragedies such as the VT shooting are to increase the number of armed civilians/students. Interestingly, in the case of the Tuscon shooting, the three armed civilians weren’t able to respond in time or didn’t for whatever reason. Who knows what good it would have done had they opened fire in the crowd or on the shooter.

  13. medwoman

    “the fact remains that you are more likely to be killed by a drunk driver than by a person with a gun”

    While I agree that there is statistical accuracy to this statement, I am not sure of its relevance.
    What types of decisions should we be making on the basis of this reasoning ?

    For example, you are more likely to be killed by a drunk driver than a terrorist. Should we then declare
    war on our inebriated countrymen ?

    Or since you are statistically more likely to die from the effects of cigarette smoking or drinking
    alcohol than from smoking marijuana, should we then out law the first two and legalize marijuana ?

    I am not sure that I understand the intent of your comment MO.

  14. Frankly

    [i]”For example, you are more likely to be killed by a drunk driver than a terrorist. Should we then declare war on our inebriated countrymen?”[/i]

    That would be a nice argument if it was true.

    [url]http://www.thereligionofpeace.com/index.html#attacks[/url]

    Unfortunately many, many more people are killed by terrorism than by drunk drivers. Also, the risk of intentional mass murder by a single terrorist is real, and is in a completely different category than unintentional death caused by drunk driver. This argument is a non sequitur.

    However, the point, I think, is the question of balance. At what point do we trample on the rights of free, law-abiding sane people (the major majority I think), to protect ourselves from the angry, murderous thugs and insane?

    At issue for me is the lack of ability to protect my family. I support strict drunk driving laws and enforcement and car safety requirements because I must share the road with others and I cannot control the risks of injury or death at their hands. Similarly, I support preemptive action against known terrorists and supporters of terrorism because I do not possess the ability to prevent them from murdering my family. As for gun rights, I absolutely support them because otherwise I have limited ability to protect myself from the murderous thugs who would acquire guns illegally.

    Progressives seem to have bipolar view of gun rights and individual safety. On one hand they complain about robust law enforcement and strict penalties for criminals. They complain about preemptive defense of known terrorists and aggressive military operations to kill terrorist. They complain about the Patriot act and Guantanamo. Then they fret about the number of guns owned by US citizens and demand we make it much more difficult or illegal to own them. I get the sense that liberal-progressives, in general, are much more comfortable being a potential victim of circumstances lacking individual control of their own safety.

    I find it very interesting… I trust law enforcement and our military and want it strong and preemptive… yet I also want the free ability to protect myself. I hate to get partisan here, but it seems we are split this way. Am I wrong?

  15. medwoman

    JB

    I do not believe that you are wrong within the frame work as you have defined it.
    Since my target audience for this post was people who read and comment on the Vanguard, I will stand by the statistical accuracy of my statement that you, as fellow Vanguard posters are more likely to be killed by a drunk driver than by a terrorist.
    NHTSA statistic 33,808 MVA fatalities in 2009 with an estimated 10,839 having died in alcohol related accidents.
    Bureau of Consular Affairs data on private US citizen deaths caused by terrorism – 9 in 2009 /injuries – 14/ kidnappings – 4
    I agree these statistics would have played out differently if my intended readership was in Afghanistan or Pakistan but it wasn’t.

    You seem to have a tendency to label, and then decide in advance how someone is likely to view an issue based on the label you have chosen for them.
    I also want safety for myself and my family and believe in robust, and equally applied and fair law enforcement. Given the fallible nature of human decision making, I am not in favor of preemptive law enforcement.

  16. Frankly

    medwoman: [i]”You seem to have a tendency to label, and then decide in advance how someone is likely to view an issue based on the label you have chosen for them.”[/i]

    I did use the word “generally” as a qualifier, and did not mean to imply that I was labeling you specifically. I don’t know what your political affiliations are. For all I know you might be an NRA member.

    I was just making a general statement… the anti-gun movement is solidly on the left, and those that want to maintain the right to own guns are solidly on the right. When you compare this with the tendencies for folks on either side of politics supporting or not supporting: law enforcement practices, sentencing laws, military strategy and deployment, the Patriot Act, etc. – I see a very interesting contrast.

    I realize that most reasonable people, regardless of their party affiliations, are not advocating the extremes for all of these things. However, it is still a bit perplexing to me that many on the left of politics want fewer guns, gun ownership made more difficult, weaker law enforcement, more lenient sentencing, a smaller and less proactive military and less intrusively into private lives of people suspected as being connected to terrorism. Frankly I don’t get the thinking on this. What is the progressive vision for how all this makes for a better life? The “broken window” theory was proved false. You cannot reduce and the safety risks inherent with crime, terrorism with so many criminals and murderous thugs in our midst just by pretending that they do not exist. You cannot prevent insane people from killing sprees. You can only be ready to protect yourself when the need arises.

    Most gun deaths are from suicide. There are very few murders by gun. You are much more likely to be killed by a drunk driver than be murdered by firearm. However, we can never calculate the number of murders prevented because the bad guys know that their intended victims might be packing too.

  17. Roger Rabbit

    For those who worry about your fellow law abiding citizen carrying a gun, I would remind you of the Rodney King riots in LA. Remember the guy getting pulled out of his truck and almost beat to death with bricks? Remember where the cops with guns were? They were on the perimeter, in a safe zone and refused to go into the riot area. This is standard procedure. So if you were in the riot and called 911, you would have been told, the cops are not entering the riot area, sorry.

    So I ask you, do you think the guys trying to kill the unarmed man with bricks would have been surprised had then showed up to a gun fight with a brick? Meaning if the law abiding innocent truck driver had a gun, he would not have been likely killed.

    So you people that think the Police will protect you and come to you rescue, you need to go back review the LA Rodney King riots.

    You might also remember all the looting and robberies, fires and beatings, except for one Korean owned convenience store where the owners were on their roof with guns protecting themselves and their property. Funny think, in middle of all these riots, with all the cops outside refusing to come in and help, this store did not get robbed or looted. Crazy Koreans, what were they thinking wanting and carrying a gun……. In the riots the difference between a victim and survivor was a gun.

  18. Superfluous Man

    Jeff Boone,

    “Unfortunately many, many more people are killed by terrorism than by drunk drivers. Also, the risk of intentional mass murder by a single terrorist is real, and is in a completely different category than unintentional death caused by drunk driver. This argument is a non sequitur.”

    Yet, you make this argument, “Most gun deaths are from suicide. There are very few murders by gun. You are much more likely to be killed by a drunk driver than be murdered by firearm.”

    So your analogous argument here is logical? Apples and oranges. Very few, which means what? Relatively few murders involve a gun?

    FWIW, “Of the homicides for which the FBI received weapons data, most (71.8 percent) involved the use of firearms. Handguns comprised 70.5 percent of all firearms used in murders and nonnegligent manslaughters in 2009.” http://www2.fbi.gov/ucr/cius2009/offenses/expanded_information/homicide.html

    Anyway, are we limiting our sample to the US or international deaths by X, Y and Z, re: terrorism?

    The US has level of gun-related homicide that is incomparable to many (if not most) western/developed nations.

    “When we look at the number of murders in the United States (in) 2009, we had 9,500 people murdered. When we look around the world, we see … large countries, the U.K., Germany, Japan, had 200 or less killed in a year.”

    Sen. Frank Lautenberg, Jan. 11, 2011

    Is that because those countries have more lenient gun control and carry laws?

    Does the fact that there are more gun-related suicides than murders help the argument that increased gun restrictions are not necessary?

  19. Superfluous Man

    Boone,

    “As for gun rights, I absolutely support them because otherwise I have limited ability to protect myself from the murderous thugs who would acquire guns illegally.”

    Which right(s)? You would like all without a criminal record to have no problem obtaining a concealed carry permit? That one should have the right to purchase and carry firearms with extended magazines capable of killing dozens of people in less than 30 seconds?

    What is adequate? What do you need to feel safe?

    “Progressives seem to have bipolar view of gun rights and individual safety. On one hand they complain about robust law enforcement and strict penalties for criminals”

    Since we’re using generalities, why do you think it is one side of the spectrum tends to be far more fearful? What are the stats on people accidentally shot by a family member?

    I think the concerns about “robust” law enforcement is related to the disparity of it (ie such efforts felt largely by ethnic/racial minorities and the poor). As for the strict penalties, I think it depends on what you’re referring to, but mental illness and the treatment of these individuals is a reasonable point to argue against “strict penalties” in certain cases.

  20. Superfluous Man

    Rabbit,

    “For those who worry about your fellow law abiding citizen carrying a gun, I would remind you of the Rodney King riots in LA. Remember the guy getting pulled out of his truck and almost beat to death with bricks?”

    He couldn’t get a permit because he was not the DA of LA County?

  21. E Roberts Musser

    MO: ““The fact remains that you are more likely to be killed by a drunk driver than a person with a gun.”
    SM: “Which is a person more likely to be murdered by?”

    Drunk driver who kills someone is guilty of second degree murder…

    JB: “I was just making a general statement… the anti-gun movement is solidly on the left, and those that want to maintain the right to own guns are solidly on the right.”

    Some of us on the right are in the middle 🙂

    RR: “You might also remember all the looting and robberies, fires and beatings, except for one Korean owned convenience store where the owners were on their roof with guns protecting themselves and their property. Funny think, in middle of all these riots, with all the cops outside refusing to come in and help, this store did not get robbed or looted. Crazy Koreans, what were they thinking wanting and carrying a gun……. In the riots the difference between a victim and survivor was a gun.”

    Very interesting example…

  22. Superfluous Man

    ERM,

    “Drunk driver who kills someone is guilty of second degree murder…”

    Sorry, non-negligent…

    Nevertheless, the FBI data says “Of the homicides for which the FBI received weapons data, most (71.8 percent) involved the use of firearms. Handguns comprised 70.5 percent of all firearms used in murders and nonnegligent manslaughters in 2009.”

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