imported post
I am posting a rough copy of the letter I sent to the Sheriff. This is from last week. I am awaiting for a reply. I am not a Lawer so anyone who uses any part of this should make sure I have not made errors of law. This is my final effort to avoid involving the courts and retaining an attorney. I will try to update the status of my situation as it progresses. I have a feeling that if am forced to hire a lawer I will be instructed to STFU.
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XXXXXXXXXXXX[/font]
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XXXXXX XX XXXX[/font]
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XXXXXXXXXXX[/font]
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August XX, 2009[/font]
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Sheriff XXX XXXX [/font]
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XXX XXXXX XXXXX, XXXX XX XXXXXXXXXX
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XXXXXXX, WA XXXXX[/font]
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(206) XXX-XXXX[/font]
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RE: Improper Denial of Concealed Pistols License[/font]
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Dear Sheriff Xxxx:[/font]
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More than 60 days have passed since my application for a Concealed Pistol License was submitted to the King County Sheriff's Office. Washington State law RCW 9.41.070 (1) states that if that I am not lawfully precluded from possession of a firearm or otherwise ineligible for issuance of a Concealed Pistol License, the sheriff shall within 30 days issue a license to carry a concealed pistol, a right guaranteed by the State of Washington. The Code employs the phrases “shall issue” and “shall not be denied.” This is not a discretionary duty. RCW 9.41.070 (1)(a-g) states all possible causes for denial of my right to bear arms. I do not fall into any of these categories.[/font]
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In my criminal record there is an assault 4 conviction (KCDC Case No. XXXXXXXXX) that is being improperly considered a crime of domestic violence to deny my CPL. I was not charged, prosecuted, convicted or accused of domestic violence in this case. [/font]
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I sent a copy of the Order of Judgment and Sentence (attached) to the Records and Data Units to show the conviction was assault 4. Not domestic violence assault 4. I spoke with XXXXXXXX XXXXX but I was told I was being denied for DV even tough they knew my conviction was regular assault 4. Information that the victim was a household member or roommate is False. There was no domestic relationship whatsoever. [/font]
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The first page of the court docket (attached) and the charging papers (attached) also confirm this was never domestic violence.[/font]
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RCW 10.99.040 [/font]
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(1) Because of the serious nature of domestic violence, the court in domestic violence actions: (d) Shall identify by any reasonable means on docket sheets those criminal actions arising from acts of domestic violence.[/font]
- [font="Microsoft Sans Serif, sans-serif"]The docket in this case has a column named DV with "NO" marked next to each charge. A "YES" would indicate domestic violence.[/font]
[font="Microsoft Sans Serif, sans-serif"]from the Washington Association of Prosecuting Attorneys[/font]
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Prosecutor's Domestic Violence Handbook[/font]
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www.waprosecutors.org/MANUALS/DV/dvmain.html[/font]
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"DEFINITION OF DOMESTIC VIOLENCE[/font]
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Domestic violence is a pattern of assaultive and coercive behaviors, including physical, sexual, and psychological attacks, as well as economic coercion, that adults or adolescents use against their intimate partners[/font]
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A. Relationship Context[/font]
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Domestic violence occurs in adult or adolescent intimate relationships where the perpetrator and the victim are currently or have been previously dating, cohabiting, married or divorced. They may be heterosexual, gay, or lesbian. They may have children in common or not. The relationships may be of a long or short duration.[/font]
- [font="Microsoft Sans Serif, sans-serif"]There was no intimate relation.[/font]
[font="Microsoft Sans Serif, sans-serif"]RCW 26.50.010(2) "Family or household members" means spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren[/font]
[font="Microsoft Sans Serif, sans-serif"]Merriam-Webster defines reside: to dwell permanently or continuously : occupy a place as one's legal domicile[/font]
- [font="Microsoft Sans Serif, sans-serif"]We never resided together. He was no more than a visitor in my home. He is not family and was never a household member or roommate. .[/font]
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I would guess that there would at least need to be a preponderance of evidence -- (lowest level of proof) to establish that a domestic relationship existed. No evidence was presented to support a relationship. [/font]
- [font="Microsoft Sans Serif, sans-serif"]Testimony of prosecution witness/'victim' XXXXX XXXXXXXXXXX XXXXXX from X/XX/200X (attached) He was asked by the prosecutor "Were you living with the Defendant at any point?" and answered "No." Mr. XXXXXX stated that at that time he was living at his parents house. [/font]
- [font="Microsoft Sans Serif, sans-serif"]The fact that I was not charged with DV is also evidence that there was no qualifying DV relationship. [/font]
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I hope that this letter has cleared up the mistake with my record. I support law enforcement and the law. If someone has the opinion that I am dangerous, unsafe or angry they are wrong. I am a member of the NRA and their Institute for Legislative Action NRA-ILA. I am certified by the State of Washington to be safe with firearms with Hunter Education. I am sorry for what I have done. There will be no future problems from me. It would be unfair and dishonest for someone to persist in misrepresenting my conviction. Taking away a persons constitutional rights is a serious matter. A person should be offered an opportunity for a defense. There is a reason why DV is an enhancement to a crime.[/font]
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If the refusal to comply continues, I will have no choice for remedy but to seek a Writ of Mandamus pursuant to RCW 9.41.0975(2)(a) and RCW 7.16.[/font]
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Mandamus is appropriate to compel a government official or entity ‘to comply with law when the claim is clear and there is a duty to act’” Euster v. City of Spokane, 118 Wash.App 383, 76 P.3d 741 (2003) citing In re Pers. Restraint of Dyet, 143 Wn.2d 384, 398, 20 P.3d 907 (2001).[/font]
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1) There is a non-discretionary duty enjoined to the office to act, and the office fails to do so,[/font]
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2) There is an absence of a plain, speedy, adequate remedy at law,[/font]
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3) I am beneficially interested in the issuance of the License, that I may exercise my Constitutionally-protected right to bear arms. [/font]
[font="Microsoft Sans Serif, sans-serif"]RCW 9.41.0975(1) The state, local governmental entities, any public or private agency, and the employees of any state or local governmental entity or public or private agency, acting in good faith, are immune from liability:[/font]
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RCW 9.41.0975 provides that an applicant may seek said Writ upon wrongful refusal of a Concealed Pistol License [(2)(a),] and that: A person granted a writ of mandamus under this subsection (2) shall be awarded reasonable attorneys' fees and costs.[/font]
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I have consulted attorneys regarding this matter. We have the transcripts of the trial. There are witnesses able to testify to the fact that there was never any domestic relationship. If this is not resolved by this letter the issue will be taken into the court. The court will rule in my favor and the taxpayers of King County will get the bill. The court will be required to provide an expedited hearing. The NRA Civil Rights Defense Fund may support my case. Litigation they are involved with can be found online http://XXXXXXXXXX XXXXXXX[/font]
[font="Microsoft Sans Serif, sans-serif"]I would like to avoid court and would greatly appreciate if the KCSO could act on the following.[/font]
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1. Immediately Issue the CPL[/font]
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2. Check the FBI NCIC to be sure my Criminal History does not show a DV and to correct it if it does. Make sure the DOL record is correct. Let me know the status in writing.[/font]
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3. Confirm in a letter for my records in case this ever comes up again that this assault 4 conviction does not involve DV[/font]
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4. Verify that I am not restricted from purchasing or owning a firearm in writing.[/font]
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5. If I am denied, why? If I am denied for DV, what was the relationship to Mr. Xxxxxx? based on what evidence? what standard of proof was that based upon? [/font]
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Sincerely,[/font]
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XXXXXX XXXX[/font]
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Enclosures 5[/font]