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Thread: CO Sheriffs who use discretionary authority to deny/revoke concealed carry permits

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    CO Sheriffs who use discretionary authority to deny/revoke concealed carry permits

    Another reason for open carry ... your local sheriff in Colorado may use his/her discretionary authority to deny or revoke concealed carry permits and there is a growing trend that Sheriffs are exercising that authority. That means that even if you have not been charged or convicted of a crime, involved in domestic violence or suffer from a mental illness or addiction, Colorado Sheriffs simply ignore the "shall issue" language of the statute and deny or revoke concealed handgun permits.

    This has become a political issue in Teller county where 1/3d of the revocations in the state are attributable to the local sheriff. The reports from the state showing how many concealed weapons permits are granted, denied and revoked by county are posted here (and attached to this post):

    http://www.mark4change.com/2nd-amendment-rights/

    Note that in Teller county the sheriff revoked about 10% of the concealed handgun permit renewals under his discretionary authority. In contrast, in Douglas county, the Sheriff revoked only 1 renewal application among a pool of about 1,500.

    In Denver, 4 years ago, no applications were denied under the Sheriff's discretionary authority. But, in 2013, 47 applicants were denied under the Sheriff's discretionary authority. What changed in Denver? Likewise, in El Paso County in 2013, 85 applicants were denied under the discretionary authority -- these are not people denied for criminal reasons, for domestic violence or addiction or mental illness.

    Are these discretionary denials and revocations made of political opponents or because the Sheriff does not like someone?

    While there are Sheriffs who are 2nd Amendment supporters in Colorado, these reports indicate that there are significant numbers who believe that Sheriffs have the authority to ignore the "shall issue" language of the statute and deny law abiding citizens the right to bear arms.

    I've contacted Colorado gun organizations (including the NRA) and they don't seem to care about this ... they are more concerned about getting a dollar from members to challenge Bloomberg rather than recognize that the folks who are actually violating gun laws are local, elected Sheriffs.
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    Quote Originally Posted by MarkS View Post
    <snip>

    I've contacted Colorado gun organizations (including the NRA) and they don't seem to care about this ... they are more concerned about getting a dollar from members to challenge Bloomberg rather than recognize that the folks who are actually violating gun laws are local, elected Sheriffs.
    You have learned much grasshopper....

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    nice touch for the advertising for the new sheriff...
    Last edited by solus; 08-19-2014 at 03:46 PM.
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    You are aware that police reports/information sometimes do not result in charges. Without the specifics, it would be hard to make a cogent argument on abuse of the discretionary authority.

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    Quote Originally Posted by JonStore View Post
    You are aware that police reports/information sometimes do not result in charges. Without the specifics, it would be hard to make a cogent argument on abuse of the discretionary authority.
    If a crime was committed, charge it and try it.
    If you cannot meet the burden of proof, then he didn't commit a crime.

    While without the details of the specific individuals and cases, we may not be able to argue specifics; I personally know of cases where a CCW was denied based on incorrect info being held by CBI and clearing up the info didn't help. I have seen a CCW denied based on driving record (didn't even include DUI).

    The details really don't matter to me. An indictment is not a conviction. A suspicion is bull. This is what our system of criminality is supposed to be.

    If you can't PROVE he's a bad guy, then he's not.

    All people have the right of self defense.

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    Quote Originally Posted by JamesB View Post
    If a crime was committed, charge it and try it.
    If you cannot meet the burden of proof, then he didn't commit a crime.

    While without the details of the specific individuals and cases, we may not be able to argue specifics; I personally know of cases where a CCW was denied based on incorrect info being held by CBI and clearing up the info didn't help. I have seen a CCW denied based on driving record (didn't even include DUI).

    The details really don't matter to me. An indictment is not a conviction. A suspicion is bull. This is what our system of criminality is supposed to be.

    If you can't PROVE he's a bad guy, then he's not.

    All people have the right of self defense.
    I do agree with your points regarding innocent until proven guilty. Yes, that is a constitutional issue. I have a difficult time accepting the OPs data without specifics, however, I wonder if a FOIA request would do in OPs case. Just a thought.
    Last edited by JonStore; 09-16-2014 at 09:39 PM. Reason: sunshine not applicable

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    When my boots hit dirt here in 2005, we were a "shall issue" state. Sheriffs had no "discretionary authority" to deny CC permits. They had to have concrete evidence that applications did not meet state or federal requirements. Sheriffs who violated the law were routinely overturned on appeal by the courts.

    What changed, and when?
    Last edited by since9; 09-17-2014 at 04:56 AM.
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    Quote Originally Posted by since9 View Post
    When my boots hit dirt here in 2005, we were a "shall issue" state. Sheriffs had no "discretionary authority" to deny CC permits. They had to have concrete evidence that applications did not meet state or federal requirements. Sheriffs who violated the law were routinely overturned on appeal by the courts.

    What changed, and when?
    I love your points here. You being up another interesting point. I believe the decision to deny/reny/revoke can still be appealed in appellate court or some kind of administrative court? To prove and review the Sheriff had documented evidence, and that documented evidence met overwhelming public interest for safety, then I do not see an issue at all. If the decision of the executive, can be reviewed by the judicial, then the issue to me is moot.

    Sure it might be inconvenient [to appeal in court], but bless America, it is our system. At least until the legislation changes.

    edit:

    I see the judicial review is an option as stated in C.R.S. 18-12-207 I don't think I agree that the OPs points still stand. The statutes are really clear to me. It permits the sheriff to have some discretion. It also says at the applicant's discretion, an independent judge can review the decision.

    OP, how is this a "bad thing"?

    Jon
    Last edited by JonStore; 09-18-2014 at 09:54 AM. Reason: added statue

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    Quote Originally Posted by JonStore View Post
    I love your points here.
    Thanks! I try. My goal is to be objective, accurate, and thorough, but sometimes I'm a little too passionate about the topic for my own good!

    You being up another interesting point. I believe the decision to deny/reny/revoke can still be appealed in appellate court or some kind of administrative court? To prove and review the Sheriff had documented evidence, and that documented evidence met overwhelming public interest for safety, then I do not see an issue at all. If the decision of the executive, can be reviewed by the judicial, then the issue to me is moot.

    Sure it might be inconvenient [to appeal in court], but bless America, it is our system. At least until the legislation changes.

    edit:

    I see the judicial review is an option as stated in C.R.S. 18-12-207 I don't think I agree that the OPs points still stand. The statutes are really clear to me. It permits the sheriff to have some discretion. It also says at the applicant's discretion, an independent judge can review the decision.

    OP, how is this a "bad thing"?

    Jon
    Excellent find. Here's the applicable statute in it's entirety:

    18-12-207. Judicial review - permit denial - permit suspension - permit revocation

    (1) If a sheriff denies a permit application, refuses to renew a permit, or suspends or revokes a permit, the applicant or permittee may seek judicial review of the sheriff's decision. The applicant or permittee may seek judicial review either in lieu of or subsequent to the sheriff's second review.

    (2) The procedure and time lines for filing a complaint, an answer, and briefs for judicial review pursuant to this section shall be in accordance with the procedures specified in rule 106 (a) (4) and (b) of the Colorado rules of civil procedure.

    (3) Notwithstanding any other provision of law to the contrary, at a judicial review sought pursuant to this section, the sheriff shall have the burden of proving by a preponderance of the evidence that the applicant or permittee is ineligible to possess a permit under the criteria listed in section 18-12-203 (1) or, if the denial, suspension, or revocation was based on the sheriff's determination that the person would be a danger as provided in section 18-12-203 (2), the sheriff shall have the burden of proving the determination by clear and convincing evidence. Following completion of the review, the court may award attorney fees to the prevailing party.

    Here's a link to 18-12-203.

    Two court findings in the history at that link may be of help:

    Applicant was denied due process because he was not apprised of or allowed to review adverse evidence or given the opportunity to confront adverse evidence and witnesses. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

    Sheriff's findings of fact and conclusions of law, prepared on remand from the district court, did not satisfy statutory requirement for a written statement of the grounds for suspension or revocation. By the time case proceeded to district court, it was too late for sheriff to inform applicant of the evidence against him and the grounds for sheriff's decision in order to provide applicant with a reasonable opportunity to exercise his statutory rights to supplement the record or request a second review to confront such evidence. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).
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    Quote Originally Posted by MarkS View Post
    I've contacted Colorado gun organizations (including the NRA) and they don't seem to care about this ... they are more concerned about getting a dollar from members to challenge Bloomberg rather than recognize that the folks who are actually violating gun laws are local, elected Sheriffs.
    Sad but true.

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    Quote Originally Posted by bomber View Post
    Sad but true.
    True? I'm not seeing where they are violating local laws.

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    Quote Originally Posted by JonStore View Post
    True? I'm not seeing where they are violating local laws.
    State law. We're a shall issue state, not may issue.

    30-10-523 Sheriff Permits for Concealed Weapons: The sheriff of each county and the official who has the duties of a sheriff in each city and county shall issue written permits to carry concealed handguns as provided in Part 2 of Article 12 of Title 18, C.R.S.

    The latter reference provides for the circumstances under which they may deny a concealed handgun permit. Specifically:

    18-12-206. Sheriff - issuance or denial of permits - report

    (1) Within ninety days after the date of receipt of the items specified in section 18-12-205, a sheriff shall:

    (a) Approve the permit application and issue the permit; or

    (b) Deny the permit application based solely on the ground that the applicant fails to qualify under the criteria listed in section 18-12-203 (1) or that the applicant would be a danger as described in section 18-12-203 (2). If the sheriff denies the permit application, he or she shall notify the applicant in writing, stating the grounds for denial and informing the applicant of the right to seek a second review of the application by the sheriff, to submit additional information for the record, and to seek judicial review pursuant to section 18-12-207.

    Looking at those criteria, specifically:

    18-12-203. Criteria for obtaining a permit

    (1) Beginning May 17, 2003, except as otherwise provided in this section, a sheriff shall issue a permit to carry a concealed handgun to an applicant who:

    (a) Is a legal resident of the state of Colorado. For purposes of this part 2, a person who is a member of the armed forces and is stationed pursuant to permanent duty station orders at a military installation in this state, and a member of the person's immediate family living in Colorado, shall be deemed to be a legal resident of the state of Colorado.

    (b) Is twenty-one years of age or older;

    (c) Is not ineligible to possess a firearm pursuant to section 18-12-108 or federal law;

    (d) Has not been convicted of perjury under section 18-8-503, in relation to information provided or deliberately omitted on a permit application submitted pursuant to this part 2;

    (e) (I) Does not chronically and habitually use alcoholic beverages to the extent that the applicant's normal faculties are impaired.

    and

    (2) Regardless of whether an applicant meets the criteria specified in subsection (1) of this section, if the sheriff has a reasonable belief that documented previous behavior by the applicant makes it likely the applicant will present a danger to self or others if the applicant receives a permit to carry a concealed handgun, the sheriff may deny the permit.

    So, let's boil this down:

    The only way a sheriff can legally deny you a CHP is if:

    1. His reasonable belief that previously documented behavior makes you a danger to self or others if receiving a CHP itself is what makes you dangerous.. Yes, that's what it says. Read it again. It's not a general danger. It's quite specific, and can be defeated in court.

    2. You're not a legal resident of Colorado...

    3. You're under 21...

    4. You're ineligible to possess a firearm...

    5. You've been convicted of perjury under section 18-8-503, in relation to information provided or deliberately omitted on a permit application. It cannot be perjury in general; only in relation to a firearm application.

    6. You're a chronic/habitual abuser of alcohol such that your "normal" faculties are impaired.
    Last edited by since9; 10-12-2014 at 07:34 AM.
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    Quote Originally Posted by since9 View Post
    State law. We're a shall issue state, not may issue.

    30-10-523 Sheriff Permits for Concealed Weapons: The sheriff of each county and the official who has the duties of a sheriff in each city and county shall issue written permits to carry concealed handguns as provided in Part 2 of Article 12 of Title 18, C.R.S.

    The latter reference provides for the circumstances under which they may deny a concealed handgun permit. Specifically:

    18-12-206. Sheriff - issuance or denial of permits - report

    (1) Within ninety days after the date of receipt of the items specified in section 18-12-205, a sheriff shall:

    (a) Approve the permit application and issue the permit; or

    (b) Deny the permit application based solely on the ground that the applicant fails to qualify under the criteria listed in section 18-12-203 (1) or that the applicant would be a danger as described in section 18-12-203 (2). If the sheriff denies the permit application, he or she shall notify the applicant in writing, stating the grounds for denial and informing the applicant of the right to seek a second review of the application by the sheriff, to submit additional information for the record, and to seek judicial review pursuant to section 18-12-207.

    Looking at those criteria, specifically:

    18-12-203. Criteria for obtaining a permit

    (1) Beginning May 17, 2003, except as otherwise provided in this section, a sheriff shall issue a permit to carry a concealed handgun to an applicant who:

    (a) Is a legal resident of the state of Colorado. For purposes of this part 2, a person who is a member of the armed forces and is stationed pursuant to permanent duty station orders at a military installation in this state, and a member of the person's immediate family living in Colorado, shall be deemed to be a legal resident of the state of Colorado.

    (b) Is twenty-one years of age or older;

    (c) Is not ineligible to possess a firearm pursuant to section 18-12-108 or federal law;

    (d) Has not been convicted of perjury under section 18-8-503, in relation to information provided or deliberately omitted on a permit application submitted pursuant to this part 2;

    (e) (I) Does not chronically and habitually use alcoholic beverages to the extent that the applicant's normal faculties are impaired.

    and

    (2) Regardless of whether an applicant meets the criteria specified in subsection (1) of this section, if the sheriff has a reasonable belief that documented previous behavior by the applicant makes it likely the applicant will present a danger to self or others if the applicant receives a permit to carry a concealed handgun, the sheriff may deny the permit.

    So, let's boil this down:

    The only way a sheriff can legally deny you a CHP is if:

    1. His reasonable belief that previously documented behavior makes you a danger to self or others if receiving a CHP itself is what makes you dangerous.. Yes, that's what it says. Read it again. It's not a general danger. It's quite specific, and can be defeated in court.

    2. You're not a legal resident of Colorado...

    3. You're under 21...

    4. You're ineligible to possess a firearm...

    5. You've been convicted of perjury under section 18-8-503, in relation to information provided or deliberately omitted on a permit application. It cannot be perjury in general; only in relation to a firearm application.

    6. You're a chronic/habitual abuser of alcohol such that your "normal" faculties are impaired.


    You have done a very good job of citing the local law. And in what instance did the sheriff violate this? I would be more interested in an instance that was not rectified by a judge. I mean that is what the judge is for... to ensure equability, fairness, and review. I know of one case where a CHP was denied, but the judge reversed the sheriffs decision. The thread is presented as if it were a wide spread problem. It is not.

    Also... is it really "shall issue" if the LAW permits a sheriff to deny. That might be another point worth considering. I mean, the law says he can do this. The law also says that decision can be reviewed. Where is the unfairness and the wanton violation?

    Jon

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    Quote Originally Posted by JonStore View Post
    You have done a very good job of citing the local law.
    Thanks. I try.

    And in what instance did the sheriff violate this?
    Haven't a clue. I'm not familiar with the case. I merely read indications of possible non-compliance with the law on the part of a sheriff, and non-understanding of the law by the applicant. Solution: Cite and clarify the law.

    I would be more interested in an instance that was not rectified by a judge. I mean that is what the judge is for... to ensure equability, fairness, and review. I know of one case where a CHP was denied, but the judge reversed the sheriffs decision.
    If my application were denied, I'd take the sheriff's justification letter apart in light of the law. If I found discrepancies, I'd politely note them, in detail, and ask the sheriff to reconsider. If he refused, the combination of the analysis and his refusal would be a slam-dunk in any law-abiding court.

    Also... is it really "shall issue" if the LAW permits a sheriff to deny. That might be another point worth considering. I mean, the law says he can do this. The law also says that decision can be reviewed.
    The law does not "permit a sheriff to deny."

    It directs the sheriff under the "shall issue" mandate to issue the CHP unless the applicant meets one or more of a fairly narrow and quite specific list of disqualifiers.

    The difference between these two diametrically opposed approaches is huge, as in "night and day."

    Where is the unfairness and the wanton violation?
    The "unfairness and the wanton violation" rests in the difference between a sheriff approaching the matter in the way you say, as having an option to deny, and the way the law stipulates, which is a mandate to issue with very few exceptions.

    I hope you understand how this distinction jibes with the term "shall issue."
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