Don Kates on CCW permits
Don Kates has sent part of a rough draft of an article he's working on, regarding discretionary permit issue. It's under extended remarks, below.
II. The Impetus for the "Shall Issue" Revolution
As of the early 1980s discretionary CCH issuance prevailed in virtually every state which issued permits to carry a concealed handgun.1 Yet by 2005 a veritable revolution had occurred in which a large majority of the states that provided for a permit to allow concealed carry had switched over to "shall issue" non-discretionary permit issuance. This revolutionary change over a relatively short time period may be attributed to several not necessarily distinct factors. First, laws giving police discretion in the issuance of permits had become associated with grave abuses. Second, widely publicized criminological research had indicated that precautionary firearms ownership allows victims to resist criminal attack with minimal risk to themselves or to society. Third, criminological research, and actual experience, demonstrated that widespread licensing of responsible, law abiding adults to carry handguns for defense did not lead to unlawful shootings and other firearms abuse but rather had coincided with the first major decline in criminal homicide in murder rates since World War II. (There is a respectable case to be made that issuance of over 3.5 million concealed carry licenses across the nation caused the remarkable decline in murder, an issue to be discussed infra. But we are making here a different and far less controversial point: While the more guns = more death faith predicted that the "shall issue" approach would result in a vast increase in gun crime, the simple fact is that enactment of "shall issue" laws in 35+ states actually coincided with a drastic reduction in murder and other violent crime– and that virtually no gun violence was perpetrated by CCH permit recipients .2)
A. Abuses under Discretionary CCH Licensing laws
Prof. Olson, whose Gun Owners Civil Right Alliance spearheaded the Minnesota "shall issue" law, sees its impetus in a series of hearings members of the Legislature had held on permit issuance under the prior discretionary issuance law:
At town meetings and committee hearings all over the state, legislators heard about permits freely given to [police and sheriffs’ officials’] campaign supporters, grade school buddies, relatives, neighbors, and other favored persons. The testifiers [also] mentioned permits granted and renewed for 5 years and denied the next merely because "I decided not to give them out anymore." Folks testified that the phrase "I’m not going to give permits out anymore" of ten meant "not to you" but did not mean "not to everyone" One man told of being advised by his lawyer that "you’re an apartment dweller, move three blocks into the next town [and you’ll get a permit from the police chief there who does issue them]." A former prosecutor told of having to sue his police chief even though he had a letter from the FBI that said "you are being threatened by a serious bad guy who will hurt you so take precautions." It took the judge just five seconds to order that the prosecutor’s permit be issued but it still cost $3,000 in legal fees. Surprisingly, no police chief even showed up to testify that "we do issue permits fairly."3
Two factors seem to adversely affect police officials in making CCH licensing decisions. First, while police officials may or may not believe in the more guns = more death mantra, they are acutely conscious that they will be blamed if they license a person who later misuses the gun. But if they deny licensure to a person who is later victimized the criminal will be blamed, not the police. Second, empowering police officials to issue CCH permits gives them the opportunity to reward politically influential people, and campaign contributors, and to associate with celebrities, and the wealthy and socially prominent, who want permits.
In addition to the question of equal treatment under law, discretionary CCH issuance may raise other questions. Under discretionary CCH issuance statutes the stated criteria for issuance are usually need (in states like New York "unique need") and that the applicant is a proper person to be carrying a gun
1. Wrongful or dubious permit issuance.
At this point it is necessary to make a critical distinction: As more fully discussed infra, the criminological evidence is clear that gun possession by ordinary law abiding, responsible people does not represent a danger to society.4 The statistical evidence is clear that ordinary responsible, law abiding people simply do not misuse guns. But the fact that a CCH permit applicant may be rich, famous, politically influential or a crony or campaign contributor of the sheriff is no guarantee that that applicant is a responsible law abiding adult. Neither does it guarantee that he has a need to carry a gun if need is a criterion for a CCH permit.5
Consider some examples: Actor Sean Penn was issued a CCH permit in a Northern California county despite the fact that a decade previously he served over a month in jail time for assaulting news media personnel. Moreover, on his release he had stated that he would attack photographers in the future if he deemed it appropriate. On the day of his wedding to Madonna he fired rifle shots in the air while news helicopters flew overhead. The fact that he had a CCH permit came to light when his automobile was stolen in 2003. Though the car was eventually recovered, the Glock 9mm. semi-automatic pistol and S&W .38 special revolver he had left in it were not.6
In another Northern California county a drunken CCH-holder was arrested for drawing his gun on an African-American couple with whom he had a verbal altercation in a parking lot. Regardless of whether he was a fit person to be granted a license, this county’s sheriff had no power to issue him one because he resided in another county.7 This seems to have been known to the Sheriff’s Office since in the place where his residence address was supposed to be entered his permit listed the address of the sheriff’s own county administration building. This man’s "good cause" and "good character" seems to have consisted in him being wealthy and having contributed generously to the sheriff’s campaign fund.8
A May, 2005 investigation in a Southern California county involved two issues of California law. First, law enforcement agencies may make suitable persons "reservists," and grant them special CCW permits without any showing of "good cause." But they still may not be issued a permit unless and until they have been subjected to a background check which shows they have no serious criminal record . Second, law enforcement agencies may invest suitable persons as actual peace officers. But this requires not only a background check but that the person pass the rigorous California Police Officer Standards and Training (POST) exam. Disregarding these legally insuperable obstacles, the Sheriff and Assistant Sheriff of Orange County (a major metropolitan area adjoining Los Angeles) had
deputized [and issued special CCW permits to] 86 of their friends, relatives and political contributors without checking their backgrounds despite concerns raised by a county attorney and the state Commission on Peace Officers Standards and Training.
Of the 86 appointees, 29 contributed to [Sheriff] Carona's campaigns in 1998 and 2002. Others hosted fund-raisers for Carona or his philanthropy,the Mike Carona Foundation]. ... [Others] had ties to [Assistant Sheriff] Haidl, including a brother, sister, nephew and two other relatives, along with private pilots, a personal secretary and other employees of Haidl's auction company....9
Haidl’s teenage son was apparently not one of those invested as peace officers or issued permits. But it is perhaps not totally irrelevant to the need for conducting a background checks before issuing permits to some bigwig’s relatives that in 2003 the Haidl boy and several friends were convicted of gang raping a teenage girl.
In a case against a prior Orange County sheriff a statistician computed that a applicant who had not contributed to the sheriff’s campaign fund was more likely to win the California lottery than to be granted a CCH permit.10 In 1999 the Los Angeles County Sheriff initiated a special program under which he announced that he was going to enroll Jay Leno, Steven Seagal and other celebrities as reserve deputies, and issue them CCH permits – reserve deputy being a status that allows permit issuance without regard to the statutory requirement that "good cause" be shown for issuing a CCH. 11 The program ended ingloriously when one of the celebrity special deputies was suspended for drawing his weapon improperly, another was arrested for federal crimes (not involving guns), and two others were found to have felony arrest records.12
Other celebrities who have been gifted wbth CCH permits in Southern California counties include television stars Fred Dryer, James Darren, and Tom Selleck. (In a private conversation Mr. Selleck insisted that he had both good character and good cause for a CCH but declared it reprehensible that hundreds of thousands of other Southern Californians have equally good cause and character but cannot get a CCH because they are not celebrities.) The fact that actor James Caan has a CCH came to light when he used his gun to rescue a felony victim from her attacker. [needs to be checked]
2. Wrongful denial of CCH permits
In San Francisco and throughout urban and suburban California CCHs are reserved for "special people" – public officials, wealthy, important and/or highly influential people, particularly including major campaign contributors. This is illustrated by reviewing the license lists in general and especially by the different results in two strikingly similar cases. One involved a former U.S. intelligence operative who had returned to San Francisco to go to graduate school in the Bay Area. He writes:
Shortly after starting school, I was contacted by the FBI and warned that a certain San Francisco Bay Area based radical group with direct Soviet communist connections and with a history of violence had my name on a list of people to be assassinated. [Of those listed,] I was the only one living in the Bay area, and thus handy for the group to deal with. The confirmed source said the group was gathering information on my schedules at school, where I was most vulnerable due to the need to appear at certain places (classes) at set times--the ideal situation for assassination.
The information about the list and the danger to me, according to the FBI contacts, came from "unimpeachable sources.". I was advised to "take precautions immediately!"
When I asked San Francisco Police Department officials about obtaining a concealed permit, I was told not to apply [because] only certain politicians received permits I was told it was guaranteed that I would be turned down and a denial would make it more difficult to get a permit from some other source in the future I was further advised by the police (and indirectly advised by the FBI) to carry concealed illegally, as a first time concealed weapon violation was only a misdemeanor in California (a second was a felony, though). The advice came informally, as it was against SFPD policy to suggest a citizen might be well advised to keep a weapon for protection. I had to carry pistols concealed illegally for years before finally obtaining a permit in another county, long after the threat had passed.13
At roughly the same time a woman applied to SFPD, and was promptly issued a license, on the basis of threats from a terrorist group. Her name was Dianne Feinstein and she was then a member of the county Board of Supervisors.14 The issuance of that license was perfectly proper, yet less justifiable than it would have been to issue a license to the former intelligence operative. In the first place he had extensive firearms expertise, much of it in combat situations, while she had none. In the second place his good cause was verified by the FBI while hers could have been no more than calls by a crank.
The term "good cause" is a very flexible one. Give n the conditions which prevail in its jurisdiction, the Los Angeles County Sheriffs office (LASO) could reasonably have decided decades ago that crime is so rampant in Los Angeles County that any law abiding, responsible adult living there has "good cause" to carry the means of self-protection. In effect, that is what LASO has decided – but only as to "special people" – over the decades in which it has given CCH permits to various "special people" with no proof or explanation of good cause beyond the formula"for protection of life and property." Yet when it comes to licensing ordinary people LASO does not consider their residing in Los Angeles good cause" for a CCH permit though the neighborhoods n which they live, work and travel are often far more dangerous than those in which the special people live, work and travel.
Such favoritism is endemic in CCH licensing decisions made in urban and suburban areas throughout the state. For the most notorious, preposterous and indeed hilarious example one turns to LAPD (Los Angeles Police Department).15 In 1992 Philadelphia police commissioner Willie Williams was selected to head LAPD. But to qualify to carry a gun as a California officer he would have to pass the POST exam. This he failed twice, probably because of unfamiliarity with California law on deadly force and firearms, and lack of opportunity to study it, given his urgent duties. In desperation he applied to LASO for a CCH That was refused, perhaps because granting it could have called news media attention to LASO’s own dubious CCH issuance practice – and certainly because of the decades of hostility between LASO and LAPD.
Incredibly Chief Williams then applied to his own department and received a CCH permit. This was incredible because the Police Commission had determined to issue no CCH permits to anyone.When it was granted Chief Williams’ CCH was the only one LAPD had issued to any of Los Angeles’ three million residents in over a decade!
The "good cause" LAPD cited in issuing his CCH exemplifies special people receiving permits on grounds which, though not illegitimate per se, are illegitimate in context, i.e, the agency would not deem such grounds good enough cause to grant a CCH permit to an ordinary person. LAPD’s stated rationale for the Williams CCH permit was
Due to the nature of his work, Chief Williams is required to respond to police incidents throughout the City of Los Angeles. In addition, ... [he is] vulnerable to attack as evidenced by recent threats on his life. Further, while Chief Williams does have access to security aides who provide for his safety, due to his 24-hour call-out responsibility it is not possible to provide this service on a continuous basis. ... [T]here are no practical means to ensure the Chief's safety other than to allow him to carry a concealed weapon. [Emphasis added.]
Clearly having to respond to crime scenes throughout Los Angeles at night could be considered "good cause" for granting Williams a CCH permit. But if that is good enough cause, tens of thousands of EMTs, ambulance drivers, fire personnel and news reporters also have good enough cause to be issued a permit. Yet LAPD would not have given them a CCH permit because they are just ordinary people.
By the same token, any reasonable person would agree that apparently serious death threats ought to be deemed good cause, for a CCH permit. But if LAPD honestly and consistently applied that rationale tens of thousands of Los Angeles residents would have good cause to be issued a CCH. (And, that is without even considering that the ordinary person who is receiving death threats does not enjoy the chief’s enormous advantage of being surrounded by armed police much of the time.)16
Compare to Chief Williams’ situation that of Peter Lake, the lead plaintiff in the case brought against LAPD by a co-author of this article. As a journalist Lake infiltrated the neo-Nazi terrorist organization Aryan Nation whose "soldiers" killed, inter alia, the Denver media personality Alan Berg. Lake’s subsequent reportage regarding this and other terrorist organizations received an "Emmy" nomination. He also testified for the prosecution in state and federal trials of neo-Nazis on felony charges, including murder and/or deprivation of civil rights. The revelation of plaintiff LAKE's activities and the resulting publicity made him the subject of continuing death threats. He had been informed by the Federal Bureau of Investigation that the neo-Nazis have put a "contract" out on his life and that he is on the same "hit list" Alan Berg was on. While the trials in which he testifies were actually going on, Lake would receive special protection from the U.S. Marshal Service or or from state authorities. Because of threat on his life Lake had been granted CCH permits in the State of Massachusetts and from the City of New York. Lake was, however, turned down by LAPD for a permit pursuant to its blanket policy of licensing no one (except, eventually, its police chief). As a result of the Lake suit LAPD conceded his entitlement and gave him a CCH permit. Other plaintiffs in the suit who were denied permits by LAPD included merchants whose businesses routinely required them to carry large amounts of cash often at night and often through dangerous areas. They also received CCH permits because of the suit.17
As of 2002 LAPD was headed by another out-of-stateer, William Bratton, former head of the NYC Police Department. And he too was gifted by LAPD with a CCH, thereby sparing him the ordeal of studying for and taking the California POST exam in order to qualify as a police officer. On its face this was less outrageous than the case of former chief Williams. LAPD was sued in 1992 by one of the authors of this article and settled by adopting definitions of good cause and agreeing to issue license to all the plaintiffs. So Chief Brattan’s is not the only permit LAPD now issues But, on the other hand, LAPD’s "good cause" finding for the Brattan CCH was much weaker than the one (quoted above) as to Williams: The Brattan finding read:
The applicant is the chief of police for the City of Los Angeles. In that capacity he is required to be armed. He is also a public figure who is recognized as a symbol of law enforcement and is therefore a target for criminal and mentally ill persons. [Emphasis added.]
We have italicized the second sentence because it is an outright lie. No provision of California law or police regulations requires a police chief to be armed. If that were what the law required the law would automatically make chiefs police officers. On the contrary what California law requires is that he pass the POST exam in order to qualify as a police officer to carry a gun. Issuing him a CCH is no more than an evasion of the law, and is obviously not necessary to his position or duties. When, after all, was the last time an LAPD chief had to draw a gun in the course of his duties? (Compare Bratton’s supposed "good cause" to Chief Williams’ quoted above which at least noted that Williams actually went to the scene of police incidents at night and in high crime areas of the city.) Because he has not passed POST Mr. Bratton is no less a civilian than the members of the L.A. Police Commission – civilians all – and they do not have CCH permits.
The argument for gifting Bratton with a CCH because he is a celebrity is also far weaker than Williams’ justification which included that he had received actual death threats. If the mere fact that Bratton is a celebrity is "good cause" for a CCH then Paris Hilton and Anna Nicole Smith have at least equally good cause. And, far from strengthening his argument, calling Brattan "a symbol of law enforcement," weakens it compared to Paris Hilton and Anna Nicole Smith. The dangers to them are epitomized by the crazed fans who attacked John Lennon and actresses Rebecca Schaeffer and Theresa Saldana, respectively. In contrast, when was the last time an LAPD chief, or any big city police chief, was attacked by an assassin?18
3. CCH issuance to celebrities
It may be useful to take a moment to consider the dubiousness of giving gun permits to celebrities in comparison to ordinary people. The problem is that the factors that differentiate a celebrity from an ordinary person all militate against the likelihood that the celebrity can repel a deadly attack. Take an ordinary housewife threatened by an ex-husband or boyfriend.. When she goes out she can be prepared to meet the threat by carefully watching for the potential assailant and walking with her hand in her purse on her revolver. In contrast, John Lennon, Theresa Saldana, and Rebecca Schaeffer had no warning they were in the presence of a murderous assailant until they were attacked. Similarly, anyone who views the newsreel footage of the attempted assassination of President Regan will see his Secret Service detail – reputedly the best corps of bodyguards in the world – reacting to the shooting by pulling their guns out from their briefcases or under their jackets at about the time the assassin had emptied his revolver.
In sum, faced with an unknown attacker a celebrity is taken totally by surprise and is likely not to be able to draw and use the gun in time to repel the attack. Of course celebrities may want guns for protection against the same kinds of ordinary dangers to which an ordinary woman is exposed: robbery, rape, etc. But if those dangers are not good cause for Jane Q. Citizen to receive a permit why are they good cause for celebrities whose lives are substantially lived in limousines and secure apartment buildings in wealthy neighborhoods?19
Having addressed these matters we turn to New York City another area where discretionary CCH permit issuance has led to gave abuse. In 2002 New York City denied an n application from the head of a small bank who often carries as much as $125,000 in cash. The denial was because "You have failed to distinguish yourself from countless others who do business in the city of New York without the benefit of carrying a concealed weapon."20What that language actually means is that the banker had failed to show the kind of celebrity or political influence needed to get a license in New York City. Who has that kind of celebrity or influence? Naming only some of the nationally famous New York CCH permittees as of October, 2002, NEWSDAY listed Donald Trum and Winthrop Rockefellerp; actors Steven Seagal, Robert De Niro, Chazz Palminteri, and Harvey Keitel, media personalities Don Imus, and Howard Stern, entertainer Buddy Hackett, record executive Tommy Mottola; and conservative icon William Buckley, founder of the NATIONAL REVIEW. The NEWSDAY article commented:
In 1981, nearly 30,000 New Yorkers (not including police) had permits to carry a weapon. As of September 1 of this year, the number was down to just 3,389. But the number of city officials, big shots and celebrities with permits is up. Deputy mayors, mayoral staff members, commissioners of education, environmental protection, taxis and licenses, sanitation, management, and a host of others all received permits. But the man in the street is denied his Second Amendment right. For the first nine months of 2002, citizen permits were denied 62% of the time, according to a study by Newsday.21
A few days before NEWSDAY had published an article noting that many of these city officials who had gotten CCH permits during the Giuliani administration, were now former officials. They had been replaced by members of the new mayor’s administration who were not being issued CCH permits. Apparently the new mayor saw no reason for his deputy mayors and commissioners having no connection to law enforcement to be running around New York City with guns.