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Thread: Memo to San Diego Sheriff's Department

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    Thursday, March 05, 2009



    To: San Diego Deputy Sheriff Steve Winchell

    San Diego County Sheriff’s Department Weapon Unit



    From: Edward A. Peruta



    Re: Your request for additional information regarding a final test and live fire



    Dear Deputy Winchell,


    As you know, I have had a CCW course of instruction awaiting your department’s approval since submitting same to the San Diego Sheriff’s Department license and permit section in November of 2008.


    It is my belief that the more difficult it becomes to qualify for and obtain a permit to carry a concealed firearm, the more people will begin to legally carry their firearms openly as demonstrated by the gathering at Pacific Beach this past Saturday February 28, 2009.


    Prior to submitting the San Diego CCW course to the San Diego Sheriff’s Department for approval, I made it a point to familiarize and educate myself with the requirements of the California Penal Code where it pertains to firearms and permits to carry concealed firearms.



    My background together with the documents submitted, verify that I am currently recognized by the California Department of Justice, State of Connecticut Department of Public Safety and the National Rifle Association as a certified instructor in various aspects of laws and safety issues pertaining to Pistols and revolvers.


    I currently have no desire to obtain certification or act in the capacity of, a firearms marksmanship or proficiency instructor.


    I am currently certified by the California Department of Justice as a Handgun Safety Course Instructor, and will be incorporating most, if not all, of their firearm safety requirements into any courses offered to prospective applicants for a California Concealed Carry permit in San Diego County.


    There seems to be two remaining issues involving the test I am to administer and the live fire mandated by your department.


    As to the issue regarding the contents of a test which is being suggested and/or mandated by the San Diego County Sheriff’s Department as part of the course I plan to offer. On advice of legal counsel, (Attorney Rachel M. Baird), I am reluctant to instruct or test course participants in any aspects which are not clearly mandated in the California Penal Code.


    I believe I must, ( and shall), teach the law, and will limit my instruction to supplying each student with an electronic copy of the current manual of California Firearms Laws 2007 as published by the California Attorney General’s Office.



    I also believe I must, (and shall), teach firearms safety, and will limit my instruction to supplying each student with an electronic copy of the current California Department of Justice Handgun Safety Course manual.


    I will, where possible, explain the law and answer any questions from my students, while recommending that any course participants with questions consult with a private attorney on any questions they may have.


    I am prepared to administer any mandated test questions at the end of every course on the condition that all questions and answers are provided by the San Diego Sheriff’s Department on official department stationary.



    It is my understanding that the Sheriff’s Department may in fact require, in addition to any certification by a recognized outside instructor, live fire of 15 rounds and a written test[/b] prior to any firearms permit being issued. If this is correct, any questions suggested or mandated by the Sheriff’s Department could be included in same.


    The opinions and positions stated above are based in part on the fact that the process for obtaining a STATE PERMIT to carry a concealed handgun has been standardized by mandates contained in California Penal Code Section 12051, (see below), which contains provisions establishing that additional documents or information, not necessary “except to clarify or interpret information provided by the applicant on the standard application form are not permitted[/b].


    “(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[/b] (A), except to clarify or interpret information provided by the applicant on the standard application form.”



    California[/b] Penal Code Section 12051.[/b](a)(1) The standard application form for licenses described in paragraph (3) shall require information from the applicant including, but not limited to[/b], the name[/b], occupation[/b], residence[/b] and business address[/b] of the applicant, his or her age[/b], height[/b], weight[/b], color of eyes[/b] and hair[/b], and reason for desiring a license to carry the weapon[/b]. Applications for licenses shall be filed in writing, and signed by the applicant[/b]. Any license issued upon the application shall set forth the licensee's name, occupation, residence and business address, his or her age, height, weight, color of eyes and hair, the reason for desiring a license to carry the weapon, and shall, in addition, contain a description of the weapon or weapons authorized to be carried[/b], giving the name of the manufacturer[/b], the serial number[/b], and the caliber[/b]. 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, [/b]applications for licenses[/b], amendments to licenses, and licenses [/b]shall be uniform[/b] throughout the state[/b], 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 review, and as deemed appropriate, revise the standard application form for licenses.[/b] The committee shall meet for this purpose if two of the committee's members deem that necessary. The application shall include a section summarizing the statutory provisions of state law that result in the automatic denial of a license. (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[/b] (A), except to clarify or interpret information provided by the applicant on the standard application form[/b]. (D) The standard application form described in subparagraph (A) is deemed to be a local form expressly exempt from the requirements of the Administrative Procedures Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. (b) Any person who files an application required by subdivision (a) knowing that statements contained therein are false is guilty of a misdemeanor. (c) Any person who knowingly makes a false statement on the application regarding any of the following shall be guilty of a felony: (1) The denial or revocation of a license, or the denial of an amendment to a license, issued pursuant to Section 12050. (2) A criminal conviction. (3) A finding of not guilty by reason of insanity. (4) The use of a controlled substance. (5) A dishonorable discharge from military service. (6) A commitment to a mental institution. (7) A renunciation of United States citizenship.




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    interesting...

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    ADD THESE TWO ISSUES TO THE LIST OF TOPICS AN APPLICANTSHOULD CONSIDER!!



    To: All prospective and rejected CCW applicants in San Diego County California



    Re: The Penal Code requirements:



    1. RESIDENCY

    2. Requiring applicants to supply THREE (3) LETTERS OF RECOMMENDATION



    1. For those who many may be in San Diego temporarily while making application while maintaining aRESIDENCE in another state or county in California, it should be noted that the law allows individuals to maintain MORE than oneRESIDENCE but only one DOMICILE.


    2. The California penal code CLEARLY PROHIBITS issuing authorities from requiring any additional informationor forms as part of the “STANDARDIZED APPLICATION”.



    These issues are not new, Connecticut has had several recent changes to their application process, some of which are being challenged in the federal courts. YOU CAN FIND THESSE ISSUES AT http://WWW.OURROCKYHILL.COM OR http://WWW.YCGG.ORG.



    The California Legislature addressed the application process by mandating a “STANDARD APPLICATION” to be used by every issuing authority regardless of location in the state.



    Remember, the permit is a STATE permit, not a local permit.



    With the exception of the loaded vs. unloaded feature of a permit, a permit issued in one jurisdiction is valid in every geographical location in California.



    My personal explanation of DOMICILE VS. RESIDENCE[/b] is this.



    The CCW applicant maintains a domicile in a county that is located in a hot desert or cold snowy mountains regardless of whether the location is in California or another state, and also owns rents or stays[/b] at another location in a California seaside county to avoid the heat of summer or cold of winter.



    Both places by law and definition would be and should be considered residences for the purpose of making an application for a CCW permit to the issuing authority in the geographical location where you are CURRENTLY RESIDING.



    My position on letters of recommendation, is very simple, they are NOT[/b] required by the standardized application which does not ask for any local area references of any kind.

    The standard application asks for the name of employer(s), and previous addresses.

    Obviously, the issuing authority has the option to contact employers and neighbors to obtain background information and any recommendations for or against a CCW being issued.




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    QUESTIONS REGARDING CCW PERMITS IN CALIFORNIA



    I'm really seriously interested in any anwers that forum readers may want to provide to thise questions. edperuta@amcable.tv


    It is legal to openly carry an unloaded holstered firearm, (pistol or revolver), in the state of California except where prohibited by law?



    Answer: True or False



    Does the Principle of a school, or the Superintendent of a Board of Education, have the ultimate statutory authority to permit firearms to be carried in the publicly owned areas within the stated1000 foot area, (School Zone), that surrounds the property lines of a school as defined by the California Penal Code?



    Answer: True or False





    Are individual with no disqualifying factors permitted to openly carry a holstered unloaded, firearm, (pistol or revolver), without a permit to carry?



    Answer: True or False



    Does the San Diego Sheriff’s Department or any other Claifornia issuing authorities requireCCW applicants to demonstrate proficiency and qualify with the firearms to be carried by firing 15 rounds prior to granting any permit(s) to carry concealed?



    Answer: True or False



    Does the San Diego Sheriff’s Department or any other issuing authorities administer written tests toCCW applicants prior to issuing a CCW permit to carry concealed firearms.



    Answer: True or False



    May anindividual under the provisions of the California Penal Codeopenly carry a holstered unloaded firearm, (pistol or revolver), while riding ON a motor vehicle such as a motorcycle?



    Answer: True or False



    An individual may carry a semi automatic pistol with rounds in the magazine and themagazinein the weapon, as long as there is not a round ready to fire, located in the chamber of the weapon?



    Answer: True or False



    Is it permissible for individuals who establish a residence and home by residing full time in a motor home, and if so, may the individual carry an unsecured weapon inANY area of the motor home under the provisions of the recent Supreme Court decsion in Heller?



    Answer: True or False



    Does the current Supreme Court case in Heller, issued in June of 2008 have any affect that may alter or eliminate anycurrent provisions of California laws as it may apply to firearms?



    Answer: True or False

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    Edward Peruta wrote:
    QUESTIONS REGARDING CCW PERMITS IN CALIFORNIA



    I'm really seriously interested in any anwers that forum readers may want to provide to thise questions. edperuta@amcable.tv


    It is legal to openly carry an unloaded holstered firearm, (pistol or revolver), in the state of California except where prohibited by law?



    Answer: True. (Note that our "loaded weapon" mainly applies to incorporated areas. While this covers the majority of the population, it is a small fraction of the land. Also note that 'gun free school zones' make even unloaded open carry precarious in most cities.)



    Does the Principle of a school, or the Superintendent of a Board of Education, have the ultimate statutory authority to permit firearms to be carried in the publicly owned areas within the stated1000 foot area, (School Zone), that surrounds the property lines of a school as defined by the California Penal Code?



    Answer: True. It is up to the district superintendant, or equivalent authority.





    Are individual with no disqualifying factors permitted to openly carry a holstered unloaded, firearm, (pistol or revolver), without a permit to carry?



    Answer: True. Possession of a firearm is not banned in CA, so no permit is required, so long as you don't violate the plethora of restrictions. There is a permit system for concealed carry. There is even a permit system for loaded open carry (though I doubt a single permit has been issued under that statute in the last 10 years, at least).



    Does the San Diego Sheriff’s Department or any other Claifornia issuing authorities requireCCW applicants to demonstrate proficiency and qualify with the firearms to be carried by firing 15 rounds prior to granting any permit(s) to carry concealed?



    Answer: I've never taken a CCW class, but it is my understanding that they do require you to show proficiency by shooting. (Not sure if this is just what instructors do as part of their course, or as a requirement by the local CLEO.)



    Does the San Diego Sheriff’s Department or any other issuing authorities administer written tests toCCW applicants prior to issuing a CCW permit to carry concealed firearms.



    Answer: (No idea here...)



    May anindividual under the provisions of the California Penal Codeopenly carry a holstered unloaded firearm, (pistol or revolver), while riding ON a motor vehicle such as a motorcycle?



    Answer: True. Other than discharing a firearm from a vehicle, there are no statutes prohibiting carry while in/on a vehicle. Essentially, the same rules apply in/on the vehicle as if you were walking down the sidewalk.



    An individual may carry a semi automatic pistol with rounds in the magazine and themagazinein the weapon, as long as there is not a round ready to fire, located in the chamber of the weapon?



    Answer: False. CA PC 12031 makes it a crime to have unexpended cartridges attached to the firearm in any way, including by magazine. People v Clark clarifies the 'in any way' part to mean only if attaching it is done in such a way as to allow the weapon to be fired. (The court correctly determined that the legislature was simply trying to cover unconventional ways a person might try to load their weapon without technically violating 12031).



    Is it permissible for individuals who establish a residence and home by residing full time in a motor home, and if so, may the individual carry an unsecured weapon inANY area of the motor home under the provisions of the recent Supreme Court decsion in Heller?



    Answer: Maybe. This is a gray area, and I'm not sure if we have any case law to help us answer this. There is a specific exemption for carrying concealed in your home, including temporary campsites. I very much doubt the driver seat of a moving motorhome would qualify, but that might change when you are parked and can claim it is part of your temporary camp site
    Also, CA law still prohibits "criminal storage of a weapon." Essentially, if you reasonably should know an underage person has access to the firearm, you are criminally liable if they do in fact get ahold of the weapon and commit a crime with it. (I think this statute could be easily overturned with incorporation of Heller, as this statute is very similar to DC's 'keep it locked up or disassembled' statute.)



    Does the current Supreme Court case in Heller, issued in June of 2008 have any affect that may alter or eliminate anycurrent provisions of California laws as it may apply to firearms?



    Answer: False... not yet. Nordyke v King County was argued in front of a 9th Circuit panel in January. If it goes our way, we will enjoy incorporation of Heller, and then we can start applying it to our silly laws. The obvious list of statutes that I expect could be challanged easily: 626.9 (gun free school zones), 12031 (loaded weapon), and certain provisions of 12050 (CCW issuance policy - if AB357 doesn't pass and correct the problem before it is challenged in court).
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    These are my answers to the questions posed. Keep in mind that I am not an attorney and these answers are based on my limited understanding of the California Penal Code and relvant case law.

    It is legal to openly carry an unloaded holstered firearm, (pistol or revolver), in the state of California except where prohibited by law?

    True. However your wording is inductive, as one must come to the conclusion that something is legal except where prohibited by law.

    Does the Principle of a school, or the Superintendent of a Board of Education, have the ultimate statutory authority to permit firearms to be carried in the publicly owned areas within the stated1000 foot area, (School Zone), that surrounds the property lines of a school as defined by the California Penal Code?

    False. According to 626.9 (b), only a school superintendent, his or her designee or equivalent may give permission in writing.

    Are individual [sic] with no disqualifying factors permitted to openly carry a holstered unloaded, firearm, (pistol or revolver), without a permit to carry?

    True. No prohibitions exist to prevent a person from carrying a holstered, unloaded handgun if they are not a prohibited person, such as a convicted felon. While a license to carry loaded and exposed is available under 12050, it is only required to carry loaded inside city limits and discharge-prohibited areas.


    Does the San Diego Sheriff’s Department or any other Claifornia [sic] issuing authorities requireCCW applicants to demonstrate proficiency and qualify with the firearms to be carried by firing 15 rounds prior to granting any permit(s) to carry concealed?

    I do not live in their jurisdiction and I am not aware what testing criteria they require.


    Does the San Diego Sheriff’s Department or any other issuing authorities administer written tests toCCW applicants prior to issuing a CCW permit to carry concealed firearms.

    I do not live inSan Diego'sjurisdiction. Iwas not subjected to any written test by the issuing authority in my area when Iapplied for my license to carry concealed. Having attended the"CCW" class was sufficient for the issuing agency.


    May anindividual under the provisions of the California Penal Codeopenly carry a holstered unloaded firearm, (pistol or revolver), while riding ON a motor vehicle such as a motorcycle?

    True. The means of transportation is irrelevant, as it is not addressed by the penal code.

    An individual may carry a semi automatic pistol with rounds in the magazine and themagazinein the weapon, as long as there is not a round ready to fire, located in the chamber of the weapon?

    False. According to current interpretation of the law, a firearm with a loaded magazine attached to the firearm inside the magazine well, with no cartridge in the chamber would be considered a violation of 12031. This is contrary to my reading of the code, but until it is settled by overriding case law it is legally perilous and would result in an arrest.

    Is it permissible for individuals who establish a residence and home by residing full time in a motor home, and if so, may the individual carry an unsecured weapon inANY area of the motor home under the provisions of the recent Supreme Court decsion in Heller?

    True. From my understanding, possession of a firearm in/at a temporary campsite is the same as it would be at your permanent residence. However, in the case of an RV or motor home, once it is in motion the same laws that apply to transportation of firearmsin a motor vehicle would be applicable.


    Does the current Supreme Court case in Heller, issued in June of 2008 have any affect that may alter or eliminate anycurrent provisions of California laws as it may apply to firearms?

    True. Kinda. It may affect laws on the books that restrict possession and carry of firearms in California, however until Nordyke and the issue of incorporation is settled, Heller only affects law at the Federal level.
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    I'd like to thank those who have answered these questions, and will continue to check here regularly for any additional information.

    I'm taking little steps in applying for instructor status and a CCW permit in San Diego.

    Ed Peruta

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    CA_Libertarian wrote:
    An individual may carry a semi automatic pistol with rounds in the magazine and the magazine in the weapon, as long as there is not a round ready to fire, located in the chamber of the weapon?

    Answer: False. CA PC 12031 makes it a crime to have unexpended cartridges attached to the firearm in any way, including by magazine. People v Clark clarifies the 'in any way' part to mean only if attaching it is done in such a way as to allow the weapon to be fired. (The court correctly determined that the legislature was simply trying to cover unconventional ways a person might try to load their weapon without technically violating 12031)
    I am am still wondering myself about this one. Although logic would determine that a magazine can be loaded, but that typically as long as the round is still in the magazine and not in the chamber it is not in a position to be fired and therefore is not loaded under this definition. That however is not made clear enough by case law from my understanding and reading of it.

    Is it permissible for individuals who establish a residence and home by residing full time in a motor home, and if so, may the individual carry an unsecured weapon in ANY area of the motor home under the provisions of the recent Supreme Court decsion in Heller?

    Answer: Maybe. This is a gray area, and I'm not sure if we have any case law to help us answer this. There is a specific exemption for carrying concealed in your home, including temporary campsites. I very much doubt the driver seat of a moving motorhome would qualify, but that might change when you are parked and can claim it is part of your temporary camp site .

    Also, CA law still prohibits "criminal storage of a weapon." Essentially, if you reasonably should know an underage person has access to the firearm, you are criminally liable if they do in fact get ahold of the weapon and commit a crime with it. (I think this statute could be easily overturned with incorporation of Heller, as this statute is very similar to DC's 'keep it locked up or disassembled' statute.) Posted here for peer review... my brain is still half asleep... must... have... coffee...
    I can tell you that in partial answer to your question. . . Motor homes and other "temporary" residences are not to be considered exempt from 626.9. There was a case, I will find it, where a man was living in a camper shell type home and it was his "residence". It was determined that since it had wheels and could move that it didn't meet the "residence" exemption to the 626.9 prohibition and was therefore convicted.

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    Theseus wrote
    I can tell you that in partial answer to your question. . . Motor homes and other "temporary" residences are not to be considered exempt from 626.9. There was a case, I will find it, where a man was living in a camper shell type home and it was his "residence". It was determined that since it had wheels and could move that it didn't meet the "residence" exemption to the 626.9 prohibition and was therefore convicted.
    I don't know the case either, but I think motor homes can qualify as a residence if it is acting more as a home than an automobile. By this I mean if the wheels of the motor home are blocked, and the motor home is hooked up to electricity and sewer lines, then it isn't "mobile." At that point it is a residence and would be treated as one.

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    off topic:

    Parked on a public street I believe it is a vehicle not a home (sorry no case law citation but I read it awhile back). See the book "how to own a gun and stay out of jail"



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    Again I'd like to thank those that are responding to my posted questions, but feel compelled to make the following comment.

    The Heller decsion currently leaves ALL previous laws and cases open for review.

    Justice Scalia left for another day the question of whether or not the 2nd ammendment appllied to the states, and there are currently cases being presented to the 2nd Circuit court of appeals on this topic.

    In the case of a motor home, the facts will dictate the outcome of any particular situation.My wife and IDO NOT live in ourmotor home on an occassional or seasonal bases. Welive in our HOME on a full time 365day basis, regardless of the state we may be in or whether it's on wheels moving or stationary.

    I fully understandwhat HAS BEEN the law and practice in the past, but the legal winds have changed greatly since the Second Ammendment has been found to be an individual right.

    At best, since the Heller decision, the law is now extremely vague and ambiguous and may be challenged on constiitutional grounds under the right set of circumstances.



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    Post added to explain background of why I filed in Federal Court on October 23, 2009.

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    Does the San Diego Sheriff’s Department or any other Claifornia [sic] issuing authorities requireCCW applicants to demonstrate proficiency and qualify with the firearms to be carried by firing 15 rounds prior to granting any permit(s) to carry concealed?

    True. My 1st 5 shots were in such a tight group, the range master said thats all I had to shoot.


    Does the San Diego Sheriff’s Department or any other issuing authorities administer written tests toCCW applicants prior to issuing a CCW permit to carry concealed firearms.

    True.



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