CHP denied - El Paso County

[grimtas]

Edit: Permission slip approved 3/18/15
Edit: Redacted some additional information as this original cause for this denial is now sealed 6/11/2015

Long time reader, never wanted to register as this is a public forum and I would have preferred to remain anonymous. Thus said I feel the need to inform the public of my current situation in the hopes that it may assist others that may find themselves in a similar situation. I will not be discussing any background on the charges nor will I argue any points surrounding those charges I don't disagree with the system only in how it's implemented in regards to my charges.

Yes my charges are severe and I make no excuses beyond what has already been proven in due process and ultimately dismissed in court.

I'm posting a redacted version of my official request(response) for re review of my CHP application by the El Paso County, CO Sheriff for your reading pleasure and to induce constrictive criticism. I will be delivering my statement after review by my attorney tomorrow morning and will provide updates as I get them.

so without further ado here's my reply to the undersheriff.

March 4, 2015

{Redacted}
Undersheriff
El Paso County Sheriff’s Office
27 East Vermijio Ave
Colorado Springs, CO 80903

RE: Denial of Concealed Handgun Permit # {Redacted}, Dated February 20, 2015, Postmarked March 02, 2015.

Dear Undersheriff {Redacted},

I formally request a second review by Sheriff Elder pursuant to C.R.S. Section 18-12-207 in regards to my Concealed Handgun Permit # {Redacted} denial.

I do not deny your statement in the letter dated February 20, 2015 that I was arrested on October 24, 2010 on a charge Redacted, as referenced in the El Paso County Sheriff Office Case Report Number {Redacted}. I do argue that the arrest report has no merit and should not be part of this decision process to grant a concealed handgun permit as that report as well as all charges levied against me have already been through due process under the Colorado judicial system, resulting in all charges being dismissed. While I have been accused of, I have not been convicted of any crime, Pursuant to C.R.S 18-12-203(C) I am eligible under both federal and State laws to own and possess firearms; An arrest or charge for a crime without proven evidence in a court of law should not be a basis for this denial.

While I respect the right of the Sheriff to deny my application pursuant to C.R.S. 18-12-203(2) on an assumption that I would pose a danger to myself or others by issuance of a concealed handgun permit, I argue the fact that I’m legally authorized to possess and carry my firearms openly in the State of Colorado via federal and state provisions and that the issuance of a concealed handgun permit will not make me a threat to myself or others.

I present that under C.R.S. 18-12-207(3) that should this matter require a judicial review “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.” As the basis for this denial is on an arrest record and report, on an isolated incident, that has already been fully vetted under law and dismissed, I argue that the sheriff does not have clear and convincing evidence that the issuance of a concealed handgun permit will have any reasonable belief to be a danger.

Neither I nor my spouse have been personally interviewed by the sheriff in relation to this application and feel that the judgment for denial of my CHP application is based on hearsay from Deputy {Redacted}’s police report and an arrest record that has already been through due process; thus warranting further and substantial review. Since this case has been dismissed by the District Attorney and I’m not prohibited from obtaining or possessing firearms under federal and Colorado state law, I would request that you reconsider this decision.

I respect the fact that a concealed handgun permit is a privilege and not a right, the reason behind my application for a CHP is solely to be within the law in the inadvertent event that my firearm should be accidentally covered by clothing while open carrying as well as reciprocity for carrying while my family and I travel. I feel that the defense of my family and self are an individual responsibility within constraints of constitutional, state, and local laws. As an individual that has not been convicted of any actions that would render my right to keep and bear arms ineligible I present that I am within reasonable cause to be issued a concealed handgun permit pursuant to C.R.S 18-12-203(1). I feel this denial is based on opinion without basis in law and does not have clear and convincing evidence that I would be a danger by the issuance of a concealed handgun permit.

Since the District Attorney did not have basis to proceed to trial on these charges, this event occurred in isolation, and there have been no other issues prior or post there should be no reason to deny my application for a concealed handgun permit.

While this issue has caused some uncomfortable discussions with employment opportunities it has not prevented employment nor has it caused denial of my reactivated DOD security clearance over three years ago. As a decorated honorably discharged disabled Veteran, and Eagle Scout I have spent the majority of my lifetime in community service and defending our nation for our freedoms. I request that you reconsider your decision.

If you require additional information or documentation that has not been provided by this statement please request any specifics you may require. The original denial letter simply advised me of my rights for re-review or judicial review but did not request any specific information or documentation.

With Respect,

{Redacted}

 

[jackrockblc]

I an curious to hear the outcome.

 

[JamesCanby]

I am not sure why you are posting this on Open Carry dot Org, a site that is dedicated to discussing the issues relevant to the open carry of properly holstered handguns...

 

[Grapeshot]

I am not sure why you are posting this on Open Carry dot Org, a site that is dedicated to discussing the issues relevant to the open carry of properly holstered handguns...

He has indicated that he frequently OCs and why he wants a permit, it is RKBA related, and specific to the laws of Colorado.

Wish him an early favorable resolution.

 

[grimtas]

So had my visit with my attorney this morning prior to delivering my request for second review to the Sheriff.

I'm going forward with filing a motion to seal the records of this event to provide some level of expectation to my privacy in the recorded public records, this is a 90+ day process and will have no bearing on this application at this point.

The front office staff of the CHP office could not be more friendly, despite my displeasure in the denial they are very accommodating.

Some points to note is there is no legal basis for a repeal timeline on a review, however the front office staff advised me that their office and the Sheriff are committed to quick resolutions and processing of all CHP applications. I was advised that my request would be delivered to the Under Sheriff today for review and assured that the request and his documentation and comments would be forwarded directly to the Sheriff for final decision, based on their current case load would dictate how long it will take them to review, request additional information, or deny again.

My defense is based on the two very clearly written State statues C.R.S 18-12-203 (Issuance procedure) C.R.S 18-12-207 (Appeal procedure) I'm attempting to dispute the original denial based on C.R.S 18-12-203(1) I'm within all Federal and States rights to legally posses, purchase, and carry firearms. Two C.R.S. 18-12-203 (2) the under sheriff is attempting to deny my application on the basis that he believes I would pose a danger to self or others should I be issued a concealed carry permit. Three C.R.S 18-12-207(3) the sheriff does not have "clear and convincing evidence" that the issuance of a conceal carry permit will make me a danger, and that the information used to arrive at this decision has already been fully vetted through the legal system and dismissed.

I questioned my attorney on the fact that the under sheriff is utilizing an arrest record and deputy statement as justification for his decision. My question was could that not be considered "Double Jeopardy" the response was not technically as this is an administrative procedure and not a legal procedure. In essence the Sheriff is allowed to use public information related to the case in their administrative judgement.

In researching for precedence should this require going to trial, there really wasn't much to work with. Should this go to trial it will be a huge expense as I will have to fund not only a District case but highly likely an appellate case as well. My attorney advised while the case would have merit under law, I would need to decide if the time came to it, if the expense was worth the privileged. I guess I'll cross that bridge if I come to it.

 

[MarkS]

Colorado is a May Issue State

Lots of people believe that Colorado is a "shall issue" CHP state, but as your case illustrates a good deal of subjective discretion is vested in the local sheriff to deny applicants if they conclude they are dangerous. If they conclude you are dangerous, then, the applicant must prove otherwise in court, an obviously expensive exercise. In testimony against the constitutional carry bill in this session, that would eliminate the need to apply to the sheriff for a CHP, LE witnesses referred to the discretionary denial power as the "naked man" exception that they wished to retain the authority to deny citizens the right to carry if LE concluded they were crazy or dangerous in spite of not having a criminal conviction.

Attached are reports filed with the Colorado legislature in 2010 and 2013 (the 2014 report will be filed in March 2015) that shows by county the number of CHP applications and renewals and the reasons for denials or revocations. There are five categories of denials/revocations: (1) arrests; (2) domestic violence; (3) residency; (4) mental illness/addiction; and (5) discretion. Category 5 is when the sheriff concludes that the applicant is too dangerous to possess a CHP. That discretionary power means that Colorado is essentially a "may issue" state in spite of the "shall issue" language in the statute.

As you peruse the reports, note the dramatic increase in the number of discretionary denials/revocations by county. Different standards are being applied statewide. Whether you can possess or keep a CHP in Colorado depends on where you live. If you lived in Douglas county, for example, the numbers suggest that your application would be less likely to be revoked or denied than if you lived in Denver or Teller county.

 

[MarkS]

Options to Consider

If you believe you have been wrongly denied a CHP, you have four alternatives:

1. Go to court and appeal as you are doing. You will fund your lawsuit and could end up paying the county's legal expenses if you lose. Be sure to discuss with your attorney the economic risks in 18-12-207(3) "Following completion of the review, the court may award attorney fees to the prevailing party." The county will defend with an unlimited war chest of taxpayer dollars (i.e., your money). The county has no economic incentive to settle and even if you win at the trial level, expect an appeal (that you will also pay for).

2. Use the time and money you would have spent on a lawyer, a trial and an appeal to support the opponent of the sheriff or fund a recall effort or change the law. Nothing gets a politician's attention like the prospect of being kicked out of office. Likely as not, if you have been denied a CHP, so have others in your community. Connect with them. File a CORA request for stats regarding denials since Elder took office. The reports sheriffs must file with the state legislation are available from the Colorado general assembly -- I'd start with a request to Mike Mauer, Director of Legislative Research. Also support the effort in Colorado to do away with CHPs and enact Constitutional Carry. Contact Senator Vicki Marble (sponsor of the bill now winding through the Colorado legislature) to see how to engage. Representative Nordberg (El Paso county) is sponsoring the House version -- hearings are scheduled on April 6 -- call him to engage in his political efforts to change the law (303-866-2965 E-mail: dan.nordberg.house@state.co.us) and testify at the hearing.

3. Get a non-resident permit from one of the states that do not give discretion to the sheriff. Those include NV, UT, FL. They are not good in CO, but allow you to carry concealed outside CO. A CO permit is not recognized in many states, BTW, like NV.

4. Open carry. But, be prepared for nervous folks and LE who view gun owners as criminals as well the possibility of no notice at all. IMHO, however, the prevailing attitude of our government is that anyone who possesses or carries a gun is viewed as inherently dangerous, so be prepared for that sort of reception.

The 2nd Amendment is right "the right of the people to keep and bear arms shall not be infringed." There is something fundamentally wrong when the people have to apply for permission from a local government bureaucrat to exercise that right.

 

[grimtas]

Lots of people believe that Colorado is a "shall issue" CHP state, but as your case illustrates a good deal of subjective discretion is vested in the local sheriff to deny applicants if they conclude they are dangerous. If they conclude you are dangerous, then, the applicant must prove otherwise in court, an obviously expensive exercise. In testimony against the constitutional carry bill in this session, that would eliminate the need to apply to the sheriff for a CHP, LE witnesses referred to the discretionary denial power as the "naked man" exception that they wished to retain the authority to deny citizens the right to carry if LE concluded they were crazy or dangerous in spite of not having a criminal conviction.
Attached are reports filed with the Colorado legislature in 2010 and 2013 (the 2014 report will be filed in March 2015) that shows by county the number of CHP applications and renewals and the reasons for denials or revocations. There are five categories of denials/revocations: (1) arrests; (2) domestic violence; (3) residency; (4) mental illness/addiction; and (5) discretion. Category 5 is when the sheriff concludes that the applicant is too dangerous to possess a CHP. That discretionary power means that Colorado is essentially a "may issue" state in spite of the "shall issue" language in the statute.
As you peruse the reports, note the dramatic increase in the number of discretionary denials/revocations by county. Different standards are being applied statewide. Whether you can possess or keep a CHP in Colorado depends on where you live. If you lived in Douglas county, for example, the numbers suggest that your application would be less likely to be revoked or denied than if you lived in Denver or Teller county.

MarkS You have already posted your views in another thread. CO Sheriffs who use discretionary authority to deny/revoke concealed carry permits
They are still very valid points in reference to this thread; however Colorado by Law is a “Shall Issue” state. The fact that the Sheriffs have a discretion to deny is a legal protection to the Sheriff and the State should they approve a CHP and someone that shouldn’t have been issued a CHP loses their marbles (There is no basis to support this fear however). The fact that the Sheriffs exercise their rights does not change the Colorado state law from Shall Issue to May Issue to the letter of the law. While the published statics do display an increase of Sheriffs exercising C.R.S. 18-12-203(2) making the process of issue more complicated and elongated, it does not make Colorado a May Issue State. That said I don’t like the broad degree of latitude that Sheriffs utilize to attempt to justify their decisions, they are making legitimate attempts to not issue CHPs to individuals that really shouldn’t have them by law. My opinion is if an individual is not disqualified via C.R.S. 18-12-203(1) then the Sheriff can only complicate the process by making applicants go through the entire process to include review or judicial review. The law allows for the ability (Albeit a very expensive prospect) in C.R.S 18-12-207(3) to challenge an administrative decision in a court of law. The law affords the individual applicant to decide if they have or want to sacrifice the financial means to defend their privilege to a CHP.

If you believe you have been wrongly denied a CHP, you have four alternatives:

1. Go to court and appeal as you are doing. You will fund your lawsuit and could end up paying the county's legal expenses if you lose. Be sure to discuss with your attorney the economic risks in 18-12-207(3) "Following completion of the review, the court may award attorney fees to the prevailing party." The county will defend with an unlimited war chest of taxpayer dollars (i.e., your money). The county has no economic incentive to settle and even if you win at the trial level, expect an appeal (that you will also pay for).

2. Use the time and money you would have spent on a lawyer, a trial and an appeal to support the opponent of the sheriff or fund a recall effort or change the law. Nothing gets a politician's attention like the prospect of being kicked out of office. Likely as not, if you have been denied a CHP, so have others in your community. Connect with them. File a CORA request for stats regarding denials since Elder took office. The reports sheriffs must file with the state legislation are available from the Colorado general assembly -- I'd start with a request to Mike Mauer, Director of Legislative Research. Also support the effort in Colorado to do away with CHPs and enact Constitutional Carry. Contact Senator Vicki Marble (sponsor of the bill now winding through the Colorado legislature) to see how to engage. Representative Nordberg (El Paso county) is sponsoring the House version -- hearings are scheduled on April 6 -- call him to engage in his political efforts to change the law (303-866-2965 E-mail: dan.nordberg.house@state.co.us) and testify at the hearing.

3. Get a non-resident permit from one of the states that do not give discretion to the sheriff. Those include NV, UT, FL. They are not good in CO, but allow you to carry concealed outside CO. A CO permit is not recognized in many states, BTW, like NV.

4. Open carry. But, be prepared for nervous folks and LE who view gun owners as criminals as well the possibility of no notice at all. IMHO, however, the prevailing attitude of our government is that anyone who possesses or carries a gun is viewed as inherently dangerous, so be prepared for that sort of reception.

The 2nd Amendment is right "the right of the people to keep and bear arms shall not be infringed." There is something fundamentally wrong when the people have to apply for permission from a local government bureaucrat to exercise that right.

Point 2 above:
I’m very aware of the current Constitutional Carry Bill running its process through Colorado legislature. While the bill has already passed the republican senate, I do not have very high aspirations of it passing the democratically controlled house or our Current anti-gun Gov signing it into law. I’ve already expressed my support for this bill and have sent letters in support.

Point 4 above:
I completely disagree with your point 4 above. I’ve open carried in Colorado for years and have never had any negative encounters with LEO’s or anyone else for that matter.

Your final quote about the 2nd Amendment, where do you see anything in it that gives you a right on how you carry. To the letter of the law you’re allowed to carry but the government is dictating how. I don’t agree with the attitude of what governments are doing here, but the 2nd Amendment guarantees you’re RKBA, it does not stipulate how an individual bears those arms. Due to the ambiguity of the 2nd Amendment in this regard, State governments enacted their interpretation and signed into laws, voted by the people either in open polling or via our elected officials, their interpretation of how the 2nd Amendment should be implemented.

Don’t get me wrong here, I’m only making some points for debate here I don’t in any way shape or form agree with what I typed and feel the people are the ones that need to affect the changes.

For reference I’m not a lawyer and only have ever had dealings with one lawyer in my life. This is my interpretation of the laws as written. Should this re-review be denied again, I’ll make the determination of whether or not I can afford further proceedings. I’m financially stable enough and have the intestinal fortitude to proceed if that time comes. If required hopefully it will provide precedence for others to follow in a similar situation. The best case scenario is any documented public record precedence would assist in the affecting of changing the existing laws.

My opinion of this entire process is to delay the issuance of CHP’s when any form of indiscretion has been made. My argument is if said indiscretions have been vetted in law through the courts already they do not have merit for an administrative judgment call by any Sheriff.

 

[MarkS]

Sorry for the Input

My mistake. I thought you made your post seeking input and ideas. Good luck with your problem.

 

[grimtas]

My mistake. I thought you made your post seeking input and ideas. Good luck with your problem.

I'm posting a redacted version ... to induce constrictive criticism.

I posted to elicit constructive debate. I appreciate your comments and had read them prior to ever deciding to make this thread. I'm not trying to offend, you offered an opinion, I offered a counter. I was not intending to upset in any way. I appreciate your comments and thought I put forth as such. I'm sorry if you did not like my counter debate, and feel you have nothing further to debate.

 

[grimtas]

Two weeks tomorrow since I turned in my request for a re-review by the Sheriff. No word yet via phone, email, or snail mail. I called earlier in the week to check on status and was informed that it could take another 90 days. ?!?WTF?!? Upon further review of the C.R.S. rules on the matter; apparently there is no timeline requirement on the re-review process. The only timelines I could find were in regard to filing for Judicial review. Hopefully this new Sheriff will uphold his Oath unlike some of our neighboring Sheriff's. I still attest that accusations are not convictions, but I digress..

 

[MarkS]

Two weeks tomorrow since I turned in my request for a re-review by the Sheriff. No word yet via phone, email, or snail mail. I called earlier in the week to check on status and was informed that it could take another 90 days. ?!?WTF?!? Upon further review of the C.R.S. rules on the matter; apparently there is no timeline requirement on the re-review process. The only timelines I could find were in regard to filing for Judicial review. Hopefully this new Sheriff will uphold his Oath unlike some of our neighboring Sheriff's. I still attest that accusations are not convictions, but I digress..

I would be surprised if you received any reply from the Sheriff since under 18-12-207(3) the burden of proving that you are too dangerous to possess a CHP shifts to the Sheriff if you seek judicial review. If the Sheriff responds to you, any statements the Sheriff makes become evidence in a judicial proceeding. If I was the County Attorney or DA (not sure who handles these things), I would tell the Sheriff to wait for you to file an action before saying anything.

It is in the Sheriff's interest to remain silent until forced to respond to a complaint. He knows that you will have to bear the costs of initiating and prosecuting an action, and must weigh the risks of prosecuting an action (18-12-207(3) "Following completion of the review, the court may award attorney fees to the prevailing party." A $150 CHP permit denied by the Sheriff can turn into a multi-thousand dollar legal battle that few would opt to pursue in opposition to a government agency that can draw on unlimited taxpayer dollars for legal defense even when the public official behaves badly/unlawfully (as the Maketa debacle illustrated to El Paso county taxpayers).

While many would disagree with me, these sorts of procedural games and discretionary authority mean that Colorado is a "may issue" state in spite of the "shall issue" language in the statute.

 

[SteveInCO]

While many would disagree with me, these sorts of procedural games and discretionary authority mean that Colorado is a "may issue" state in spite of the "shall issue" language in the statute.

You might be technically right, but cases of this happening are fairly rare, even in hoplophobe counties.

If those counties had broad discretion, they'd just say no a lot more often. So there may be a tiny bit of discretion, but not very broad.

 

[MarkS]

You might be technically right, but cases of this happening are fairly rare, even in hoplophobe counties.

If those counties had broad discretion, they'd just say no a lot more often. So there may be a tiny bit of discretion, but not very broad.

Denver County 2010 zero discretionary denials & revocations; 2013 47 discretionary denials & revocations
El Paso County 2010 32 discretionary denials & revocations; 2013 91 discretionary denials & revocations
Teller County 2010 zero discretionary denials & revocations; 2013 12 discretionary revocations (about 10% of renewal applications)
Douglas County 2010 zero discretionary denials & revocations; 2013 zero discretionary revocations & denials
Pueblo County 2010 7 discretionary denials & revocations; 2013 2 discretionary denials

I have no clue whether the standards applied by Sheriffs in Denver, Douglas, Pueblo, Teller or El Paso counties in exercising their discretionary authority is consistently applied, but the figures suggest that it matters where one lives in Colorado and the discretionary denials/revocations have no correlation to the number of applications received. On a percentage basis, these are indeed tiny, but the right to keep and bear arms is a right, and the standards applied should be the same statewide. This is a poor analogy, but I just returned from a trip through the South along the road between Selma and Montgomery. On a percentage basis, only a few blacks seeking to exercise their right to vote in Alabama were beaten and killed by local authorities and the abuses occurred more in some counties/states and less so in others. But, those abuses against a few did not make them right, just or in any way legitimate. The unjust denial of a right to anyone affects everyone in our society in my view.

Said differently, would it be right if government said "Yeah, we convicted you of a crime unlawfully, but it's OK because it does not happen very often and does not happen in all counties in Colorado."

The solution, IMHO, is constitutional carry that eliminates the discretion of local sheriffs or processing by a state agency (e.g., the state attorney general) as they do in Kansas and Utah to eliminate abuses by local authorities.

 

[SteveInCO]

I wasn't claiming it was right. No way, no how.

I was suggesting that perhaps the discretion exists in only a small percentage of the cases. Otherwise hoplophobe counties would be behaving a lot more like NJ NY MD at. al. and hardly ever issuing a permit. (I am assuming they would abuse their discretion as often as they possibly can, because that's what hoplophobes do, given the opportunity.)

I'm going to speculate a bit and throw out: Perhaps here, the difference is that the burden seems to be on the sheriff to show (or be prepared to show) why he shouldn't issue a permit, rather than on the prospective permittee to prove he "needs" it. What we see now is the sheriffs testing the limits of this, seeing how many denials they can get away with before someone brings them up short.

Like I said, it isn't right. It appears that it's shall-issue 99 percent (or so) of the time. The other one percent is simply wrong. And even there, that's thinking according to "shall issue" logic.

As you suggest it's better to think in terms of "permits? we don't need no steenking permits!" logic--but if we do that the question of "discretionary" vs. "shall issue" is a side-issue.

 

[grimtas]

Permission Slip Approved 3/18/15

Called the Sheriff to get an update on my re-review and to see if they required any further documentation or statements.

To my surprise I was advise my CHP was approved on 3/18 and most likely mailed on 3/20. I should have it in the mail within the next couple of days if the post office doesn't deliver it to my neighbors. :banana::banana::banana:

 

[Grapeshot]

Called the Sheriff to get an update on my re-review and to see if they required any further documentation or statements.

To my surprise I was advise my CHP was approved on 3/18 and most likely mailed on 3/20. I should have it in the mail within the next couple of days if the post office doesn't deliver it to my neighbors. :banana::banana::banana:

Congratulations! You apparently made the right waves in the right pond.

 

[grimtas]

I'm just glad that all it took was clearly stating my defense as defined by Colorado Law. The prospect of having to file for judicial review would have been expensive, I probably would have gone through the process just on principle. I still paid some in the end as I'm going through the process to seal the records regarding this matter to hopefully prevent any hassles in the future.

 

[jackrockblc]

Called the Sheriff to get an update on my re-review and to see if they required any further documentation or statements.

To my surprise I was advise my CHP was approved on 3/18 and most likely mailed on 3/20. I should have it in the mail within the next couple of days if the post office doesn't deliver it to my neighbors.

FANTASTIC! Glad to hear you're getting you CHP. Annoying that you have to wait for it to be mailed (here in Jefferson County, we pick it up from the same place we apply at).

 

[SteveInCO]

FANTASTIC! Glad to hear you're getting you CHP. Annoying that you have to wait for it to be mailed (here in Jefferson County, we pick it up from the same place we apply at).

Renewals could be much faster though.

Last time I renewed, I showed up, they photographed me and handed me my permit on the spot. They told me if I heard from them a few weeks down the road, then something showed up in my background investigation and I'd have to give it back.

The "Class of '95" (the group that first applied when Sheriff Anderson decided that "may issue" meant "I will issue") apparently has been almost problem free.