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AG/DOJ Aftermath:
Repercussions From The First Report

By Jim March - jmarch@prodigy.net - June 20th, 2002

This document is an addendum to the previous report (dated 5/22/02) on CCW issues within the state AG/DOJ's offices.


Introduction:

Within two days of the release of the initial report detailing a cover-up of CCW "good cause data", I was contacted by Randy Rossi, head of the DOJ Firearms Division.

He immediately suggested holding a meeting to discuss the issues raised, and as I write this, that meeting happened yesterday so there's lots of news :).

In my conversations with Mr. Rossi, it was made clear that his entire subdivision of DOJ ("Firearms Division") is fairly new, and didn't exist during the first half of '99 when the events in question took place.  That's why the memo that went out on 7/20/99 was from the "Criminal Information" division.

So there was no effort to "sidestep" Mr. Rossi within DOJ, and his group wasn't involved in any cover-up.

Did a cover-up happen?  I still think so, but I think it was "brought in" by the PD Chiefs and Sheriffs involved in the process.  I don't think DOJ understood the depths to which some of the Sheriffs such as Rupf of Contra Costa has sank; during the meeting, it seemed like I might be making headway at giving them some heads up as to what sort of slimeballs they're dealing with.

There's no blame to be placed here with current DOJ Firearms Division folks, and Randy Rossi has done an excellent job so far in trying to come to terms with a problem he clearly "inherited".

The Meeting

As Mr. Rossi and I had discussed, participants included Ed Worley of the Sacramento NRA staff (in person), Chuck Michel (NRA/CRPA attorney in LA, by phone), Sam Paredes of Gun Owners of California (by phone).  We also had about half a dozen DOJ/AG staff, a total of about 10 other interested pro-gun citizens, notably including firearms instructor Jim Wissick in person.

Also present was somebody whose name I didn't catch from AGS by phone (Americans for Gun Safety, the "grabbers in disguise" mob), Luis Tolley by phone (Western Regional Director for The Grabbers Formerly Known As HCI But Are Now Called "The Brady Bunch" <grin>) and in person, Eric Gorovitz, formerly of the "Million" Mom March and a gaggle of other grabber-groups at various times.

Before the meeting started, I had a copy of the Perata "good cause letter", and passed it to Mr. Rossi with a grin, asking if he'd seen it.  He looked it over a chuckled.  Gorovitz glanced over, and I passed it to him.  He read it, started giggling, and I explained that I'd obtained it via Public Records Act and that it had hit Drudge at one point.  I then said "ya, you know how I am with PRARs, right?".  He stopped laughing :).  (See, he and I have a bit of a history - I used PRARs to prove that him and the grabber-group he was involved in, the "Million" Mom March, had ripped off the city of San Francisco for $millions, and got 'em kicked out of their free office space in disgrace.  See also this page for full details, such as the front-page SF Examiner story on the subject.  Hey, I gotta have SOME fun here, right?)

General Trends

The grabbers really, SERIOUSLY do not enjoy talking about even the possibility that local law enforcement could be acting improperly in handling CCW, and expressed great concern for the privacy rights of the permitholders who "obviously" are getting their permits due to "dire need".  I ended up spending quite some time describing the worst abuses I know of, such as Colafranesco's confession and the rest of the Sacramento situation, the insanity in Oakland, the apparant corruption in Contra Costa County and similar.  Not sure how much good it did, but...oh well.

Tolley also objected to Chuck Michel's statement that there's an equal protection issue in play; I shut him  up by describing the support for equal protection in CCW expressed by the 9th Circuit in Guillory vs. Gates, and the equal protection language in CBS vs. Block ("If the information on which the decision to grant can be kept from the public and the press, then there is no method by which the people can ever ascertain whether the law is being fairly and impartially applied").

The Devil In The Details

After the CBS vs. Block judgement was handed down, the legislature wrote an addendum to the Public Records Act which superceded CBS, and went into a bit more detail on what CCW records can or should be released and/or withheld.

This became part of Government Code 6254.  6254 is a list of items that should be completely or partially excluded from public review; item (U) is the CCW related bit.  Not sure what year, but it was long before this CCW forms creation process happened in '99.  The final result:

6254.  Except as provided in Sections 6254.7 and 6254.13, nothing in this chapter shall be construed to require disclosure of records that are any of the following:

...

(u) (1) Information contained in applications for licenses to carry firearms issued pursuant to Section 12050 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department that indicates when or where the applicant is vulnerable to attack or that concerns the applicant's medical or psychological history or that of members of his or her family.

(2) The home address and telephone number of peace officers, judges, court commissioners, and magistrates that are set forth in applications for licenses to carry firearms issued pursuant to Section 12050 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

(3) The home address and telephone number of peace officers, judges, court commissioners, and magistrates that are set forth in licenses to carry firearms issued pursuant to Section 12050 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

Items 2 and 3 here aren't too much of an issue, in that the people like Chuck Michel and I who file CCW PRARs for the purpose of studying local law enforcement action on the subject don't want that sort of info for any permit applicant.  I'd like to see it changed to mandatory withholding of phone numbers, street addresses, social security numbers and gun serial numbers for every permit applicant; as is, PD Chiefs and Sheriffs are allowed under this code to release this stuff, even for Judges.  In theory, a Sheriff could "punish" a Judge by releasing data, although we haven't seen it and I doubt the crooked Sheriffs who might otherwise like to such a thing would have the guts.

The real controversy is in item 1.  Eric Gorovitz and company would like to claim that release of ANY "good cause statement" could increase risk of attack - as an example, if a jeweler puts in "I carry valuable shiny things daily worth $100,000" in the "good cause statement", and then gets DENIED, public disclosure could put him at risk.

My response: in this case, selectively expunging the dollar amount would be reasonable, and "my side" of the issue is strongly in favor of withholding the guy's residence address, phone, business address, etc.  Being a jeweler, the real crooks are already going to know he sometimes carries goodies, and a whole lot of people in this state pack illegally (footnote 1).

There are going to be times when a "good cause statement" should be expunged before public disclosure.  The name of a threatening individual should definately be excluded; in some cases, perhaps the exact nature of valuable goods that are a crook attractor should be glossed over or edited.  Fine.

But that sort of editing should be "to as minimal degree as possible while preserving safety".  I think that exact language should be part of a new broadcast from DOJ to top law enforcement officers.

Also, reading item (U)(1) at face value, only "good cause data" that contains info on "when or where" people are vulnerable is strictly covered.  So if there's a limit on the times a permitholder can carry, certainly those times are confidencial.  The "when" part is mostly about addresses, and we're not asking for those.  The term "WHO" isn't in there, although Chuck Michel and I can (I think) accept minimum-level editing there (name of a threatening individual, etc).

The majority of urban-area "good cause statements" that I've seen have been either very sketchy, sometimes non-existent, or add up to "I'm the buddy of somebody important" (such as Oakland!).  In Contra Costa County, one permitholder name of Ken Behring gave as his entire good cause statement "High profile...need protection" - and yes, that's verbatim and complete.  Behring is a wealthy real estate developer and former owner of the Seattle Seahawks NFL team.  Many Contra Costa permitholders have been getting renewals for decades, since long before the current Sheriff Rupf has been in office, and in looking at the "raw data" it's clear that no updates to the "good cause" has been filed despite some guys changing careers or retiring.

That's the sort of info Chuck Michel and I are looking for, and it's got nothing whatsoever to do with the permit applicant's safety.  I'm sure Gorovitz and Tolley would like to pretend this doesn't happen as a pretense for withholding all of this from Chuck and I but screw 'em, we've got scads of proof already.

But there's a whole 'nuther layer of details.

Let's say that the AG/DOJ staff that worked on the forms with major input from Sheriffs and Chiefs did take a "regulatory action" in deciding that Government Code 6254(U)(1) excluded all "good cause data".  Let's assume they had such regulatory authority.

Whoever came up with AB2022 set a trap for 'em.  Penal Code 12051 is what required the creation of this new form:

Penal Code 12051. (a) (1) Applications for licenses shall be filed in writing, signed by the applicant, and shall state the name, occupation, residence and business address of the applicant, his or her age, height, weight, color of eyes and hair, and reason for desiring a license to carry the weapon. Any license issued upon the application shall set forth the foregoing data and shall, in addition, contain a description of the weapon or weapons authorized to be carried, giving the name of the manufacturer, the serial number, and the caliber. The license issued to the licensee may be laminated.

(2) Applications for amendments to licenses shall be filed in writing and signed by the applicant, and shall state what type of amendment is sought pursuant to subdivision (f) of Section 12050 and the reason for desiring the amendment.

(3) (A) Applications for amendments to licenses, applications for licenses, amendments to licenses, and licenses shall be uniform throughout the state, upon forms to be prescribed by the Attorney General. The Attorney General shall convene a committee composed of one representative of the California State Sheriffs' Association, one representative of the California Police Chiefs' Association, and one representative of the Department of Justice to develop a standard application form for licenses. The application shall include a section summarizing the statutory provisions of state law that result in the automatic denial of a license. The Attorney General shall adopt and implement this standard application form for licenses on or before July 1, 1999.

(B) The forms shall contain a provision whereby the applicant attests to the truth of statements contained in the application.

(C) An applicant shall not be required to complete any additional application or form for a license, or to provide any information other than that necessary to complete the standard application form described in subparagraph (A), except to clarify or interpret information provided by the applicant on the standard application form.

(D) The Attorney General may adopt and enforce regulations that are necessary, appropriate, or useful to interpret and implement this paragraph pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. Pending the adoption of those regulations, the Attorney General may adopt emergency regulations that shall become effective immediately. The adoption of the emergency regulations shall be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, and the emergency regulations shall only be effective until June 30, 1999, or on the effective date of the regulations adopted by the Attorney General to implement this paragraph, whichever occurs first, at which time the emergency regulations shall be deemed to be repealed.

The neat part is in "(D)", that last paragraph.  I won't quote Government Code 11340 - 11359 right here, it's freakin' huge - go to the state law database and look it up (use 11340 as the search term, hit the "government code" checkbox).  But what it adds up to is, in order for DOJ to properly "adopt and enforce regulations that are necessary, appropriate, or useful to interpret and implement this paragraph", they need to do a public review process for the regulation, plus assign a regulation NUMBER to it, then publish the regulation and number with a state gov't agency called the "Office Of Administrative Law", plus make the regulation number available to the public, etc.

None of that happened.  I mean NONE.  The entire process of creating the CCW form in '99 happened in secret.

What does it mean?

We've pretty much established at the 6/19/02 meeting that the people involved in the forms creation process in '99 went too far with the "hiding things for permit applicant safety" thing.  Hiding all "good cause data" was way overkill.  If this was "regulation" to amend law enforcement handling of the Public Record Act CCW disclosures, it was an illegal regulation because the GC1134x provisions weren't followed as mandated by PC12051.  (Gawd, my aching brainpan!)  The only reason we're not suing right this second is because Randy Rossi is being very reasonable in dealing this mess.

The Future

Next step, Chuck Michel, a DOJ lawyer and Gorovitz (sigh), all attorneys, will talk offline about how to revise either the CCW application form, the instructions to law enforcement, or (probably) both.  Once they've hammered out a proposal, we'll hold another meeting like this last to discuss it.  Also, at some point we're going to need more input from law enforcement, because after all PC12051 says that's a group the AG's office needs to consult with.

But nothing is going to happen to fix this in secret.  That's the good news.  Bad news, it's going to take a bit more time to fix.

Other steps

* I've filed a PRAR with DOJ asking what CCW they have on hand, and asking them to produce what they have for one selected "example jurisdiction", San Francisco Police Department.  So far, it appears they've got everything except "good cause data" but that's OK, it means we can make sure agencies are telling us about EVERY permitholder and there's a lot we can do with just the names of permitholders by jurisdiction (campaign contribution records, for starters).  Plus, by looking at the date of issue and the date of expiration, we can tell if it's a Judge or reservist, by adding up the length of issue.  Kewl.

* It turns out a different DOJ division can investigate a claim of criminal wrongdoing by law enforcement.  I'll be making such a claim against Sheriff Rupf of Contra Costa within days.  Mr. Rossi has agreed to give me an introduction to the right people.  In addition to the Rupf data on my website, I have additional details to be used by a genuine investigator with subpoena powers; copies of that have gone to a couple people I trust just in case Gorovitz or Tolley goes and warns Rupf I'm after him to this degree and Rupf gets hinky.  Not too likely, mind you, he hasn't screwed with me yet (past screwing me out of a permit of course).

Hang tight, y'all.  We have two more meetings; I'll post as many details as I can; I'll publish notification of each step to the CA-Firearms public mailing list and the Legal/Political discussion area of TheFiringLine.

Are we having fun yet?  (sigh)

Jim March - jmarch@prodigy.net

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Footnote 1: in 1987, Florida set up a shall-issue CCW law, with a large rush of permitholders.  In the years immediately following, the main thing that "went wrong" was that crooks switched to targeting tourists travelling the highways (knowing that they were less likely to be packing).  Germany issued an official warning to it's citizens in...1991, I think?  Anyways.  Florida solved the problem by banning renta-car insignia of any type - they essencially blended the unarmed tourists in among the armed population <GRIN>.  The truly interesting thing is that CALIFORNIA LATER COPIED THE RENTA-CAR MARKINGS LAW - apparantly because it protected tourists here due to the massive non-compliance with California's morally bankrupt CCW process on the part of California citizens?

Let me be clear: the only reason I don't pack illegally is because I'm too high profile, Rupf would LOVE to pop me on a CCW bust, and I need to keep my standing as a potential plaintiff.  I hung my guns up in February of '99, a month before I sued Rupf the first time.  I packed illegally for a year and a half before that, never caught, during a time when I was at serious personal risk based on threats after I put up a website on some crooks (long load times).  I have no respect whatsoever for how this law is being largely enforced, but I feel that fighting back through legal channels does the bastards more harm than just ignoring it.