The California Appellate Law Podcast

CCW Permits with Criminal Defense Hero Don Hammond, part 1

• Tim Kowal & Jeff Lewis • Season 1 • Episode 138

Share episode

Just because you’re law-abiding doesn’t mean you won’t need a criminal-defense attorney. There are more criminal laws in federal and California state law books than you could read in a decade. (I asked ChatGPT: if you printed them all out, they would be taller than the 24-story AT&T building in San Diego.)

Enter Criminal Defense Hero Don Hammond. In addition to his services on behalf of good people who made mistakes or find themselves abused by the system, Don is an expert in firearms training and licensing. In this first part of our discussion, we talk with Don about the brand new—and procedurally unique—post-Bruen concealed-carry permitting regime, which replaces the near-completely discretionary system with a “shall issue” procedure. In a recent writ of mandamus, the Superior Court ruled that merely failing to disclose a long-expired restraining order is not grounds to deny a CCW permit, because that is not one of the statutorily-enumerated grounds for denying a CCW.

Stay tuned for the second part where Don talks about the Supreme Court’s 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing firearms was consistent with the Second Amendment tests under Heller and Bruen. Rahimi, when attempting to comport it with Heller and Bruen, **gets a bit confusing—so what are lower courts to do with it? But one thing Rahimi did emphasize is the actual violence Rahimi committed—so would California’s authorization of disarming restraining orders merely to protect “mental calm” pass muster? Then we circle back and ask: if the Legislature amended the CCW laws to make nondisclosure a ground for denying a CCW, would that pass muster under Rahimi?

Don Hammond’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Announcer  0:03 
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis,

Jeff Lewis  0:17  
welcome everyone. I

Tim Kowal  0:18  
am Jeff Lewis and I'm Tim kowall AS certified appellate specialist, both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast useful, please recommend it to a colleague. Yeah,

Jeff Lewis  0:34  
if you find it unhelpful, run it through chatgbt, maybe you'll like it better.

Tim Kowal  0:37  
All right, Jeff, today we have live in your studio anyway, Criminal Defense Attorney Don Hammond with us, so we're going to be talking about CCW permits, writs of mandamus, challenging denials of them and the United States recent Supreme Court decision in Rahimi. Don is the founder of criminal defense heroes PC, the firm serves all of Southern California and beyond from their torrents office. Don is a critical response attorney for the unit United States concealed carry Association and the armed citizens defense, Legal Defense Network. Don is an NRA certified shooting instructor, and regularly teaches concealed carry courses with shoot safe learning in Lomita. He defends people who are accused of criminal charges, including firearms charges, and helps clients with CCW license applications and appeals of denials. Don, welcome to the podcast. Thanks for being with us. Well, thank

Don Hammond  1:30 
you. It's a pleasure to be here. All

Tim Kowal  1:32  
right. Don tell us a little bit more about your your practice than I just covered in your bio just now.

Don Hammond  1:38  
Well, I It's primarily a criminal defense practice. We do a wide variety of things with a focus. One focus is DUI stuff. We've been well known for our DUI work for a long time, and the last couple of years, we've been pushing more into the firearm space and became a shooting instructor, and with a lot of the recent changes in the CCW permitting process. We've been moving more and more into that firearms process.

Tim Kowal  2:06 
Yeah, Dawn's

Jeff Lewis  2:07  
being a little bit shy about his DUI practice. He he knows the science behind the DUI test that the police officers use, and he shreds officers on the stand, so he's my go to guy for DUI cases.

Don Hammond  2:18 
Well, thanks for that, Jeff. I do enjoy bringing my manuals into court and figuring out how the officer actually did it versus how they were supposed to do it. And

Tim Kowal  2:27  
Don we were talking a little bit offline before we hit record here, but tell, tell our audience a little bit about what it's like to have a DUI practice. What give us a sense of the human side of the story in these DUI cases. You were saying that a lot of these people are just good people who've made made a mistake and and sometimes the law goes overboard going after them and you're trying to hold them to account. Tell us a little bit about your approach to defending people with DUI charges.

Don Hammond  2:51  
Sure. So with DUIs and other kinds of criminal charges in general, you know, I think my first job in every case is to figure out who made the mistake. Right? Most of my clients are really good people who maybe made a mistake one night, for example, in a DUI, you know, maybe they had an extra glass of wine with dinner, and, you know, they're on their way driving home, they get pulled over. You know, are they over the limit or not? Right? Did the did the police actually have a reason to stop them or not? These are the kinds of things we're looking at. So my first question in every case is, who made the mistake? Did my client actually make a mistake, or did the police make a mistake in even initiating the investigation, or a mistake in making the arrest, or a mistake in how the blood was drawn? You know, where are the mistakes in the process that we can capitalize on to hold the government accountable and to help keep our clients lives on track? You know, very often clients come into the office and like, Hey, I know I screwed up. I want to minimize the impact. And I say, Well, you mind if I take a look at the reports and the police procedures here and see if there might be an avenue for us to challenge something otherwise, yeah, we're going to connect them with resources they need to address underlying issues. If there are, you know, substance abuse issues, we're going to make those connections. If there are mental health issues, we're going to connect them with what they need to address those things. And then by the time we get to court, we have a great mitigation packet, and plus, we're going to look at the police procedures and the science behind what's going on in the government's case. And between those things, we said we take a multi pronged approach, right? I'm looking at the science and the procedures, and then I'm also looking at mitigation. And I say, Hey, Mr. Prosecutor, you've got problems with your case here, here and here, also, my client's a really good person who deserves the best deal you're ever going to give somebody. Here's all the mitigation. Let's figure this out, and usually we're able to come to a reasonable conclusion of the case.

Tim Kowal  4:31 
Yeah, you mentioned earlier about making sure that the police had had a good cause to pull your client over in the first place. Sometimes I think about how, how many of these kind of rinky dink causes there are, you know, broken tail light or your registrations expired a month, you know, sometimes I drive around with my with my new tag sitting on my passenger seat for a month or so before I remember to stick it on the the actual license plate, and I can be pulled over for. Of that for any reason this month,

Don Hammond  5:01  
and it's sitting on my desk at my office to pay it,

Tim Kowal  5:04 
right? Yeah, so there's, there's almost endless reasons in the law. There was, there's a book written a few years ago called three felonies a day. You know, there's the code books that the criminal statutes are, you know, three stories high. How can anyone possibly comply with the law? Things

Don Hammond  5:20  
that you the things that you mention are actual, like concrete, legal, you know, objective things, right? Inspired registration or a tail light or license plate light, that's one of my favorite ones. But then there are much more subjective things, like tinted windows, right? A cop stops somebody for tinted windows. I've never seen a cop do anything further to try to investigate whether the tent was actually legal or not. Well, it just looked

Tim Kowal  5:43 
like it was a little too dark. So I'm gonna go now do a search in your car, do anything

Don Hammond  5:47  
to try to figure out how dark it was. And it's fun to get them on the sand that. Well, you could see how many people were in the vehicle, couldn't you? Oh, yeah, yeah, I could see that. Oh, well, how dark was it then? But then there are things like, you know, weaving within the lane, right? I mean, there's a Supreme Court case that I love that says, you know, a driver is not expected to maintain a perfect vector down the road, then you need substantial and prolonged weaving for it to rise to the level of reasonable suspicion for a traffic stop. So, yes, we've won cases on that exact issue.

Tim Kowal  6:15 
It wasn't substantial and prolonged weaving. Yeah,

Don Hammond  6:19 
it's, you know, maybe the tires touch the line once, and then there's a little bit of a wee within the lane. But especially now, everybody's texting while they're driving, like we're eating McDonald's while we're driving. And, you know, there's all kinds of reasons that we weave all over the place that have nothing to do with alcohol and that are not necessarily illegal if you're not actually, you know, impeding traffic in another lane or having an impact on somebody

Tim Kowal  6:41  
could have been the AI feature in my car that swerved me over I was getting too close to the lane marker. Sure. Well, that's

Don Hammond  6:47 
a whole another conversation about self driving cars and what that's going to do to this whole practice area.

Tim Kowal  6:53 
Yeah. So Don what, what TV or movie lawyer would you most identify with?

Don Hammond  7:00 
I would go with Mickey Haller from the the Michael Connelly book series, which has been made into the movie The Lincoln Lawyer, and then on the into a Netflix series of The Lincoln Lawyer. Mr. What's

Tim Kowal  7:12  
What is it about? Nikki howler,

Don Hammond  7:14 
I think it's really portrays the criminal defense lawyer lifestyle. Well, the you know, the concept of a Lincoln Lawyer of like, you know, your your office is your car. I mean, this morning I was at two different courthouses, right? You know, I live in Torrance. I got up and went to Compton and handled the case, and then went to the Downey courthouse to handle the case, before coming up here to do the podcast. And that's a pretty typical day for me, two or three courthouses, usually done before noon, and then I'm back to the office to work on, you know, prepping for the next day, drafting briefs and motions and things, doing new client intakes, consultations, you know, managing my life and my practice, all of that happens in the afternoon after I'm done with court.

Tim Kowal  7:57  
Yeah, I don't think it's I'd be hard pressed to remember a time when I didn't see you in a in a coat and tie, whereas, if Jeff or I see each other with a coat and tie, we ask each other, are you in trouble for sanctions? Right? Yeah. I

Don Hammond  8:12 
mean, I'm in court almost. It's a rare day that I don't have at least one court to go to, and very often, I'm in two or three courthouses in a day.

Tim Kowal  8:19  
Don if you, if you hadn't gone to law school. What would you be doing today? I think we'll probably be talking about some of the things you might be doing. But

Don Hammond  8:25  
yeah, well, one thing that I would probably be doing is teaching people to fly airplanes. I am a flight instructor, and so on the weekends, I volunteer with Civil Air Patrol a lot to teach cadets to fly gliders, and I do some flight instruction with them. So I could make a not as good, but make a living doing some of that and also teaching people to shoot. I'm a firearms instructor, and I enjoy doing that. So I could try to turn that into a a job. Yeah. How

Tim Kowal  8:53  
long you've been a pilot?

Don Hammond  8:54  
I have been I got my private pilot's license in 2006 but I started flying back in 1994 as a Civil Air Patrol cadet, flying gliders down at Los Alamitos, where I teach today and

Tim Kowal  9:07  
Don you also mentioned, you talked a little bit about staying on top of law enforcement technology. What do you mean by that? What types of law enforcement technology to stay on top of that becomes relevant in the courtroom? So

Don Hammond  9:20 
it depends on the kind of case, but we're all aware of, you know, DNA evidence, gunshot residue evidence, fingerprints, you know, in DUI cases like I've personally spent time in a lab processing and testing human blood samples for alcohol using gas chromatography. So, you know, I dig deep on those kinds of things, and I understand, you know what the government is up to and where the possible problems are. You know, for example, in a DUI case, you know, I know every step that blood is going to go through, from the time it leaves my clients arm until it comes out the other side of a machine as a little squiggly line. And you know, where are the opportunities for fermentation in there? Where are the opportunities for human error? You know, whether was it refrigerated properly? Was it processed correctly in the lab? And you know, you can't necessarily tell. There are some cases where you can tell from the shape of the squiggly line that something went wrong, but it's really hard to go back and prove what, especially if you haven't done that work yourself, in terms of understanding, you know, where the issues can arise.

Tim Kowal  10:16 
Yeah, now, and you had mentioned earlier that, that you identify with, with Nikki Holly, The Lincoln Lawyer, you know, running your practice out of your car. And one thing that Jeff and I talk a lot about on this podcast is, is legal technology, does all the new legal technology does that? Does that play into your practice, more or less working out of your car, going, you know, hither and yon, talking with clients on the phone. Does does it? Does it affect and enhance your practice to have access to all this new legal technology, or is it, are you still just using the the standard tools of the of the cell phone?

Don Hammond  10:55  
Oh, it's absolutely great to be able to, you know, Bluetooth in a car, for one thing, just to be able to have a phone call while driving. I try to avoid doing that with clients, or certainly intakes, because I want to take notes and those kinds of things. But, you know, I came out of the Downey courthouse this morning and popped into a Zoom meeting with a prospective client sitting in the courthouse parking lot in my car, on my tablet that I use, I also take notes. I have my tablet sitting here, but I take notes on it in court, yeah, just open a Word document and use the right on the screen. I take notes on my tablet, save it to the client folder, and I don't have to scan notes and things that way. So that's really helpful. I did one time try to plug a printer in in my car, and that didn't go as well as I'd hoped, that promptly blew a fuse. Okay, mobile printers

Tim Kowal  11:41 
are not up to stuff yet. That

Don Hammond  11:43 
was quite a while ago. Maybe it's better now, or the next car I get might be something like a rivian that I think could handle that. And

Tim Kowal  11:49 
then one other question before we get into into one of our Meteor topics, we talked about your you know, a lot of your clients are accused of DUIs and and running afoul of other laws when you are talking with potential client, one thing that Jeff and I have talked about on on this podcast are red flags, various types types of red flags that you encounter when you're interviewing potential clients and you think, well, either this client's not going to pay, or this client is not telling you the whole truth, are there, are there red flags that you have developed over time in your practice that that tell you that you know this, this is not a I don't want to, I don't want to put my name next to this client.

Don Hammond  12:32 
There are probably hundreds of them. It's to me, it's more of a general sense of, is this going to be a person that's going to be a good fit for me to work with? A lot of that is, can they pay? You know, criminal defense practice is largely a cash up front kind of practice. I do take payment plans more often than I should, and I get screwed way more often than I should, but I get a substantial chunk up front at least, so that I'm, you know, I'm okay before I put my name on a case, exactly, because it's really hard to get a judge to let me back out of a case because that great witness, Mr. Green, didn't show up. So yeah, that is a big one. Other red flags, of course, is somebody has a prior attorney that they're transferring. For some reason, it's like, what's wrong with that guy? What's the problem? And sometimes they tell me the name, and I know what's wrong with that guy, and I'm like, Oh, I understand why you want to come over to it to a better attorney. That makes a lot of sense. But you know, there, there are all kinds of people want to. I've had people yell at me. People want to argue with me about the law. And I'm like, why'd you come to talk to a lawyer if you just want to argue with me about

Jeff Lewis  13:36 
the law? But they Googled it. They know what the law, right? I

Don Hammond  13:40 
talked to a guy this morning who's got some sort of a domestic violence case, and he's like, Yeah, we worked it all out, and we know exactly what's going to happen in the next court date. They just said that I couldn't do with the public defender, so I had to have a private attorney. So I just need you to show up and stand there and, you know, let the deal go the way it's going to go. I'm like, that doesn't quite sound like what's probably going to happen. Also, it seems like what you're telling me, I'm reading being between the lines is probably some sort of a mental health diversion, which is going to lead to progress reports probably for the next two years. And you're going to want me to show up for all of those as well. So yeah, this isn't going to be, you know, $500 show up once kind of a thing that he was hoping. So I quoted him a price that I think was much more than he was hoping to pay for the amount of work that he believes will be involved, having no idea how much work is actually going to be involved of whatever attorney he ends up with. So those kinds of things happen all the time. All

Tim Kowal  14:38 
right, Don Well, let's, let's get right into the substance of talking about some some of the laws concerning CCW permits, concealed carry permits, and I've Jeff may may be wondering why I spending so much time with the kind of the background and banter questions, because I'm a little bit leery about exposing my ignorance of the gun laws. I think a lot of US attorneys, i. But you know, we gun laws are a big national conversation. We talk about, we need to tighten the gun laws. We need to get rid of loopholes and but very few of us have any idea of what the gun laws actually are, what the loopholes actually are. We're not gonna be able to cover all of it, obviously here, but we wanted to talk about a recent successful case that you had, it was on a writ of mandamus, I believe, in the Superior Court, and it came out of a denial of a concealed carry permit application. Tell us a little bit about about that case and just a general process about getting a concealed carry permit and why your client was was denied the permit by the local police department, right? So

Don Hammond  15:42 
by way of background, you know, there was the Bruin case, the Supreme Court decided about two years ago that eliminated the good cause requirement for a concealed carry license. California had a good cause requirement. It was, of course, immediately invalidated two years ago. So the next thing that stuck in California law was a moral character requirement that was the most popular reason for agencies to deny people permits. By the way, the last few years, it used to be all issued at the county sheriff level. They pushed those down to local police agencies issuing permits now under Penal Code Section 26 155, primarily for the local police agencies.

Tim Kowal  16:24 
What kind of moral character questions can they ask you in your permit application? Well, it

Don Hammond  16:30  
was very open and subjective, right? I mean, basically, anybody who's ever been, you know, arrested or convicted of anything, they might say that's a moral character issue we're going to deny you based on your moral character. I've heard of people with with credit issues. They filed a bankruptcy five years ago, or whatever, and the Police Agency says, oh, that's bad moral character. We don't think you should carry a gun. It's

Tim Kowal  16:51 
more like, more like how they do things in the military, I understand, than the way they do things in operating under law, right? So,

Don Hammond  16:58 
so the legislature, of course, saw this, this problem, and they wanted to have California Legislature, of course, is notoriously anti gun, and they wanted to have their response to Bruin, where which they implemented in a bill called Senate Bill Two, which took effect January 1. Some parts of that bill, like sensitive places, changes as to where somebody with a license can carry is all on hold pursuant to a case called may versus Bonta, but the things that are in effect now is a complete overhaul of the concealed carry license permitting process. And so California, as of January 1, became a shall issue state, assuming you meet specific criteria, it doubled the length of the training requirements. So you have to have 16 hours of training now, which I'm open to arguments that that's not nearly enough for somebody who's going to carry a

Tim Kowal  17:50 
gun around on them every day. And when you say, shall issue, that means that, basically, you're entitled to a permit as long as you meet the threshold requirements, as opposed to, well, you just come and ask, and we'll see Correct

Don Hammond  18:01  
Correct. So it's a shall issue, as long as you meet the requirements. And most of the denial reasons are contained in Section 26 202, of the penal code. And the broadest one there is somebody's reasonably likely to be a danger to the selves, others, or the community at large. And then there's a list of specific restraining orders that you could be subject to within the last five years. So if you had a restraining order that expired within the last five years, you're presumptively not qualified to have a concealed carry license. Certain convictions, certain convictions within the last five years, some within the last 10 years. There are a bunch of different things listed there that can be denial reasons. Notably, what is not listed anywhere in the statutory scheme is a failure to disclose something on an application is not a reason for denial. And we see a lot of those that agencies are denying people for a failure to disclose. There is a law, of course, I think it's 26 180 that says it can be a crime to fail to just to knowingly fail to disclose something on your application, and it lists specific things that you have to knowingly fail to disclose. It's not just anything that you knowingly fail to disclose, but of course, there's that knowingly element also, and if you were convicted of that crime, you very well may be ineligible for a permit.

Jeff Lewis  19:21  
Hey, Don, when an agency denies a permit, do they have to give a reason, or do they just say denied? They

Don Hammond  19:26 
give a reason? So generally, they'll, they'll, the denial letter will say, either, you know, failure to disclose something on the application, or it'll, usually we see the listing the subsection of 26, 202, so it'll say, you know, subject to a restraining order, or you had a conviction for this, or it'll just say, broadly, you're reasonably likely to be a danger to yourself, others or the public at large, pursuant to blah, blah, blah. And that can include a psych report that they that they may do. And I had one case. Case where they local agency actually get a psych report and that, you know, became a problem for for the client. Yeah,

Tim Kowal  20:06  
so these new laws are a response to the Bruin decision that that that that held that you can't just have these infinitely discretion discretionary calls to decide who gets a CCW permit and who doesn't not

Don Hammond  20:19 
supposed to be discretionary at all, but there is still this sort of subjective, reasonably likely to be a danger criteria.

Tim Kowal  20:27 
Well, as long as anyone can remember, in California, it's been purely discretionary, is it not?

Don Hammond  20:32 
Oh, absolutely. It's before Bruen, you had to show good cause that you had a you know, you were in fear for your life, or you carry a lot of money regularly, or you're a jewelry store owner, or you had to have a good reason for wanting to carry a gun. And Bruin said, a desire for self defense is enough. The amendment two to the United States Constitution, yeah, and then to restrict it, of course, Bruen put in place a reference to historical analogs that you know at the time of the the founding and the framing that there has to be some analogous law to restrict firearms rights, and that's how we got to Rahimi,

Tim Kowal  21:13  
right? Yeah, which, which we'll talk about in the in the next segment. But just because we've changed the laws these police departments have been operating. And is it the, is it just like a deputy or is it the police chief who is reviewing these applications? It's supposed to

Don Hammond  21:30  
be the police chief. What we usually see is they'll have a unit of, you know, detect one or more detectives who are conducting the background investigations, because there's, I mean, they're supposed to conduct an investigation. They talk to at least three references, one of whom is supposed to be a spouse and or cohabitant. They are supposed to review publicly available information. So think about your social media. They're supposed to actually conduct an investigation to determine whether you're reasonably likely to be a danger or meet some of the other prohibited person categories. So they usually have somebody who does all that investigation, and then they present a package with maybe a recommendation to the chief, and the chief makes the ultimate decision, or the county sheriff, depending on the agency. So it's all, it's all based on where you live.

Tim Kowal  22:13 
So the new process that constricts the the police chief's discretion. I mean, this is a new law, and these chiefs have been operating with with near complete discretion for as long as they've been doing this. Have have, in your experience, have they have they've been making that transition. Are they able to to just follow the the factors outlined in, what is it penal code, two to 6206? Or are they still kind of coming to the to the conclusion that they would have pre Bruin and then trying to get to the same outcome within the structures of the new law,

Don Hammond  22:48 
I think that they are issuing more licenses now than they did before January 1 of this year, certainly, and over the last two years, I think they were issuing more than they ever did pre Bruin. So I think we're in a much better space now, better, of course, being from the perspective of people who think people should carry guns, some people would say that's a much worse place to be, and don't begrudge them that that's a valid conversation to have. So I think that they are issuing more and more licenses under the new law. But of course, what I see is skewed. Right? People are reaching out to me because they've been denied for whatever reason, and then we're trying to figure out, okay, well, was this a valid denial? Did they have a reason? Do you meet any of the sort of objective criteria? Were you convicted of something involving drugs or alcohol in the last five years? If so, well, we got a problem. Although 26 202, does say basically that the following things are denial criteria, unless the court decides otherwise. Under 26 206 so even if you are under one of those you know Objective things, there's still a shot at going to the judge and saying, Hey, I shouldn't be a probative person for whatever reason. That's the opening line under 26 202, it says, Unless a court determines otherwise, the following shall be, you know, reasons for denial.

Jeff Lewis  24:06  
Okay, yes. So describe that process. If someone gets denied, they come to you. They need to go to court. What is that the next step after the local agency says, nope, right.

Don Hammond  24:16 
So it's, it's like a petition for writ of mandate, but it's sort of a streamlined, less intense version. It's a request for hearing under 26 206, the DOJ has a pretty simple form that says I basically it's, I am this person, this agency denied me on this date, and I want my hearing. And so you have to file that within 30 days of the denial. So a lot of times people are waiting too long, and they're like, Yeah, I got the night in February and I want to go do something about it. And I'm like, well, we probably already blew that timetable, and

Tim Kowal  24:50  
since your your client is the one petitioning, does your client have the burden of proof? No, it's

Don Hammond  24:56  
actually really interesting, not something I want to talk about before I leave. I. Um, the the case is captioned at the People of the State of California versus Joe Blow for whatever reason it's, it's the statute says that it's, that's the way it's captioned. And the prosecutor, a district attorney, has the burden of proving beyond a preponderance of the evidence that the person is a, you know, is prohibited under the factors in 26 202, so it's kind of a weird special procedure that the legislature put together. It's a lot like, and I've done several of these, the process to restore firearms rights after a 5150 hold somebody who's put on a 72 hour evaluation for a mental health hold by the police that triggers a five year firearms exclusion. And there's a process under Welfare and Institutions Code Section 8103 that allows a petition to restore firearms rights in that context. And the the language in 26 206, of the penal code, it is very much mirrors that process. So we're, you know, borrowing from that body of law.

Tim Kowal  26:10 
So the presumption is that the the agreed party is is entitled to the return of possession of fire. That's

Don Hammond  26:16 
a shall issue state. They shall issue unless the government can prove that you are not entitled to your permit.

Tim Kowal  26:25  
Yeah? That is an interesting procedure. Yeah,

Jeff Lewis  26:28 
let me ask you appellate nerds like me and Tim live and die by the appellate record. It's not in the record. It doesn't exist in some administrative matters, just this administrative record you lodge with the Superior Court before it makes a decision like on CEQA, is there some sort of administrative record with, like, a psychological report and social media pronounced that you have to lodge with the court as part of this? Or what does the court consider?

Don Hammond  26:50 
So the police agency is supposed to within 14 days of getting noticed that there's going to be a hearing. By the way, we filed a thing within 30 days. They set a hearing within 60 days, within 14 the clerk of court then sends a notice of the hearing to the local agency answer the DOJ. DOJ provides a printout for the court saying, hey, this person is a prohibited person or not, which is just purely for like owning firearms, basically, as far as the DOJ is concerned. And then the police agency is supposed to submit their record, or they can submit a declaration to the court within 14 days. My practice is to go ahead and issue a subpoena to the agency and say, give me everything you've got, including all notes and everything that exists, so that we have a more complete record of things that maybe I want to present to the judge that they chose not to. Oh, interesting. So yeah, and it's pretty open. It says that the law says that the court can consider basically anything, notwithstanding hearsay, etc, unless it's 352 which is more likely to be prejudiced than prejudice and probative.

Tim Kowal  28:05  
All right, Don so in your case, your client had been denied a CCW permit, initiated this, this case. So even though your client is your client, labeled the petitioner or the respondent, you can call him the petitioner, but he's,

Don Hammond  28:17 
I mean, he's actually labeled, it's people versus him, yeah? Thing that they do it that way, and the DA was totally confused, too. And I'm like, by the way, this is, this is the caption, and the

Tim Kowal  28:27 
way it's because this is all brand new,

Jeff Lewis  28:29 
yeah, which sides? You know, you can go to the table, you sit, normally far from the jury box, and you sit next to the jury

Don Hammond  28:35  
box. Well, no, because they did. It's the people versus and it's the DA is burden of proof, so it's up to them to prove to the judge, if they don't present anything, then I win. So, yeah, it's a totally weird process. So

Tim Kowal  28:47  
the respondent files the case exactly, exactly. Okay, let's that is, I think that's that may be something new under the sun. Okay. And so, the So, the so the chief had denied the permit, and what was the basis for denying the permit? So

Don Hammond  29:05  
this guy had a domestic violence arrest back in 2014 no case was ever filed. So he never had a conviction with just an arrest. Of course, the statute of limitations is long expired, so they can't file it now. But as a part of that arrest, and he revealed the arrest on his application, he said, Yep, I was arrested by you guys back in 2014 nothing ever came of it. No problem, yeah. But as a part of that process, the police served him as he's exiting the jail with a pile of paperwork. But in that pile of paperwork is one particular document called an emergency protective order, and this is something that is very frequently issued in domestic violence cases. It's a seven day protective order. There is no opportunity to challenge it, there's no hearing, there's no opportunity to evidence to a judge, but the police basically send a couple of sentences of what happened to a judge. A judge. Signs it, there's a duty judge who says, Yeah, sure, whatever. Here you go. And then they're prohibited from, you know, one back so the alleged victim or whatever, for seven days. Seven Day order, and then it dissolves on its own terms. Seven days dissolves on its own terms. It's designed to give the complaining witness an opportunity to go to court and request a domestic violence restraining order. Got it Okay, which then had been invokes all the process where you have a hearing and all that, yeah, hitting the pause button, right? It's a stopgap measure to, you know, keep people safe in the interim. Yeah, but this guy, you know, it expired on its own terms in seven days. This was 10 years ago. He revealed the arrest because he remembered that he hadn't thought about this thing in 10 years. Yeah. So there's a question on the CCW license application that says, Have you ever been subject to any kind of a protective order? And he said, No, he hadn't even never thought about this thing for 10 years, and it's the only time in his life, right?

Tim Kowal  31:00 
Yeah, so it was a failure to disclose. The police chief saw that, oh, you failed to disclose this, so I'm going to deny your your application

Don Hammond  31:08 
gets better. Initially, they sent him a letter denying him saying that he was subject to a restraining order. And he says, Well, that can't be true. He sends him a message back and says, I absolutely am not, and I never have been. What are you talking about? Then, of course, then they sent him a subsequent denial letter saying you failed to disclose. Of course, one problem in with that theory is that there's nothing in the statutory scheme for the CCW licenses. There's nothing in there that says you can deny for a failure to disclose,

Tim Kowal  31:41 
there's and again, because, because of the regime, is shall issue, and it can only, the permit can only be denied for statutory enumerated reasons, right? The idea here and non disclosure is not one of the it's not one of them, no. And even the judge said, Well, it's a crime, right? Well, if they can prove that he knowingly failed to disclose certain things. Sure they could prosecute him for that. But on this record, it seems that he clearly didn't know, or have any reason you know, he didn't remember. He didn't knowingly failed disclose anything. Okay? So the judge saw that and accepted the argument that, look, it has to be statutorily enumerated. Non Disclosure is not an enumerated basis for denying the application. So petition, petition denied.

Don Hammond  32:27 
He found that the people failed to meet their burden of proof that he's prohibited under 26 202, and, you know, ordered, then ordered the local agency to go ahead and issue his CCW license.

Tim Kowal  32:40 
Okay, okay. Well, and then to close the loop on this story, I guess we'll have to allude to Rahimi, which we'll discuss in our next segment, which, well, let me, let me just ask you, Don will the legislature come back in and amend penal code? Two? Six was a 202, to add non disclosure is one of the bases for denial of an application.

Don Hammond  33:05  
I mean, let me see my crystal ball. You have one? I mean,

Tim Kowal  33:09  
is that? Do you think that would pass muster under Heller and Bruin?

Don Hammond  33:13 
It's an interesting question whether failure to disclose. I don't. I don't think it would. I don't think so, but I don't think that this broad reasonably likely to be a danger thing would pass muster either if it were challenged head on, yeah, you'd have to, I mean, I guess we'd have to do the historical analysis, right? Yeah, analog to a failure disclose prohibiting somebody from carrying a firearm in public when there were no permits, right?

Tim Kowal  33:43 
No, maybe we should put a pin in that question and revisit it after we talk about Rahimi, which, which seems to liberalize a little bit the the text in history analysis, to justice, Thomas's chagrin as he writes in the dissent, absolutely, yeah, but let's, let's hit the pause button on that, and we'll come back to that later. Don Anything else we need to, need to cover, to tie the loop on, on the CCW permitting application process. Well,

Don Hammond  34:12  
it's just a whole new ballgame. And we're, you know, we're trying to figure out, you know, each one is, is pretty new at this point. So after I wore brand new as of what January of 24 January, January 1. And in Los Angeles County anyway, no judge had actually considered one until early June, when I got mine granted. It was the first one that a judge actually heard. And then the following week, I lost one on a much worse record, where there were there had actually been a psych report, and the judge wasn't in the psych I got a one page thing from the psych report that says the person that there's evidence in the psychological questionnaire and his background and whatever that he you know that he could be a problem if he's issued a license, and the judge wasn't willing to go against that to over. From the agency. So I won one, I lost one, and now there's, there's another guy who had filed one on his own, who I talked to during the process, when he was going to go to this hearing, and he decided not to hire me at that stage. Oh, he's good. Good plan just to go without a lawyer. Good. Good plan to go in on your own. Of course, he lost, and now he's hired us to to file an appeal, so we're figuring out the process to appeal a judge's ruling under 26 206,

Tim Kowal  35:30  
limited civil are these limited or unlimited civils? Do they go up to the appellate division or the special

Don Hammond  35:35 
proceedings under Section? Was

Jeff Lewis  35:37  
it 22 Yeah, the civil person, it's a one and done, and it's subject to the rules of a normal 60 day notice of appeal in civil proceedings. And don't ask me how the parties are designated on appeal, because it's bonkers.

Don Hammond  35:50 
So we're figuring that out. And I think I'm going to file the Notice of Appeal tomorrow.

Jeff Lewis  35:54 
Yeah, the appellate dash responded, I guess. Yeah.

Tim Kowal  35:59 
Okay, well, stay tuned. And if, yeah, if you have a if you have a CCW application that's been denied, you know who to call Don Hammond the DUI hero. Okay, well, we're going to resume this conversation in our next segment. Until then, if you have any additional topics or questions or guests that you would like to have featured on the podcast, please email us at info@calpodcast.com, and in future episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  36:27 
See you next time

Announcer  36:28  
you have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court for more information about the cases discussed in today's episode, our hosts and other episodes visit the California appellate law podcast website at Cal podcast.com that's c, a, l, podcast.com thanks to Jonathan Caro for our intro music. Thank you for listening, and Please join us again. You