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This Material Provided By Culture War Associates. |
So
They Revoked Your Permit???
You were probably a bit surprised when you got a certified letter
today from your county sheriff, weren’t you? He is saying
that you must surrender your concealed handgun license (CHL)
– right now!
Now what do you do?
Well, while this material is not meant to be legal advice,
we hope this will help you to begin to get your permit restored
if the revocation was improper or not justified.
You must start immediately as the law doesn’t give you
much time to respond to this.
If you can afford it, contact an attorney
right away.
Make sure you find one who has done this kind of work before.
Your family probate attorney is simply not going to be good
enough.
From here we will assume that many of you don’t have the
money for an attorney to do this job for you. In that case you
will have to represent yourself, or go pro se (pro-say), as
it is called.
ORS 166.293 (5) says, “A person
denied a concealed handgun license or whose license is revoked
or not renewed under ORS 166.291 to 166.295 may petition the
circuit court in the petitioner’s county of residence
to review the denial, nonrenewal or revocation. The petition
must be filed within 30 days after the receipt of the notice
of denial or revocation.”
The word “receipt of the notice” here refers to
when the letter was delivered, not sent. However, to
be on the safe side, it might be wise to file your petition
within 30 days of the date on the letter.
So, within 30 days, you must file what is called a “petition” with the
“circuit court in the petitioner’s county of residence.”
The petition is a relatively simple document (See: Sample petition
below.), but that only begins the process. We will discuss the
step-by-step process of this filing below, but first we need
to make several other things clear.
The reason why the 30 days may need to be carefully considered
is that the statute provides that the hearing on the matter
take place within 15 days of filing the petition.
ORS 166.293(8) says, “Petitions
filed under this section shall be heard and disposed of within
15 judicial days of filing or as soon as practicable thereafter.”
If you are going "pro se", 15 days is an awfully short
time to prepare your case. This is especially true if you are
unfamiliar with the law and how legal processes work.
You may wish to work on preparing your case through part, most,
or even all of that 30 days before filing so that the 15 days
is just more time in which to prepare. That time may be your
best asset.
In either event, you will need to spend time getting to know
the part of Oregon law that is relevant to the revocation and
the petition for review. That law is available here.
Take the time to read carefully through it before continuing
with this. In the process of preparing your case, you will probably
read these laws dozens of times. Specific words are very important
in law, so you must not simply gloss over what you read. Your
case is too important.
Making Your Case
You are going to have to make your case before a judge, so you
will need to begin to think in legal terms. The court has standards
within the law that require it to look at your case under specific
terms
.
ORS 166.293 (6) says: “The judgment
affirming or overturning the sheriff’s decision shall
be based solely on whether the petitioner
meets the criteria that are used for issuance of the license
under ORS 166.291 and 166.292. Whenever the petitioner has been
previously sentenced for a crime under ORS 161.610 or for a
crime of violence for which the person could have received a
sentence of more than 10 years, the court shall only grant relief
if the court finds that relief should be granted in the interest
of justice.”
We added that emphasis above for a reason.
Do not overlook it.
NOTE HOUSE
BILL 2300 of the 2007 Legislative Session will almost certainly
change this. We fully expect this bill to pass and return the
law to the old language. See the above link for more information.
NEW UPDATE. MAY 2 2007.The courts have decided
that this part of the law has been misinterpreted and overturned
it. Sheriffs MAY revoke for the same reasons they deny.
This means that the court is supposed to be limited to considering
your revocation based on whether you meet the criteria for getting
your CHL in the first place. These criteria are listed in ORS
166.291 and 292. Your job now is to go back through each and
every criterion listed in those two sections to make sure you
are not in violation of any of them.
For instance, if you have recently been arrested or cited for
a crime, the revocation will stand – at least until 30
days after the arrest if no charge is filed (ORS 166.293(4))
– or if you go to trial and are acquitted.
One of the things the sheriff is required to do in the revocation
letter is specify “the grounds for the revocation” (ORS 166.293(3)(b)).
While it will be important for you to concentrate on disproving the
allegation in the letter, it is important to know that the sheriff may
come into court claiming more grounds than were in the letter. You
don’t want to get caught off guard here.
This is why it is important to gather evidence to show that
you qualify under all the criteria in ORS 166.291 and 292.
At this point a warning is in order. Most judges tend to believe
law enforcement personnel more than they deserve – and
certainly more than Joe Citizen. Remembering that will help
you understand why you may need to have way more proof than
you should really need, that you qualify for the CHL under those
statutes. Be ready for every eventuality.
Now we come to an anomaly in the law.
ORS 166.293(2) says, “Notwithstanding
ORS 166.291 (1), and subject to review as provided in subsection
(5) of this section, a sheriff may deny a concealed handgun
license if the sheriff has reasonable grounds to believe that
the applicant has been or is reasonably likely to be a danger
to self or others, or to the community at large, as a result
of the applicant’s mental or psychological state, as demonstrated
by past pattern of behavior or participation in incidents involving
unlawful violence or threats of unlawful violence.”
We call this “The Willies Clause.” It seems to be
used if, for some reason, you give the sheriff “the willies.”
Very often it is as simple as that.
(NOTE: There have been some important changes
in the law. If your license has been revoked it is very important
that you read this page.
What follows was written prior to the law change and applies
more to denials than revocations.)
We are a aware of one case where a man who was a regular anti-abortion
protestor had his CHL pulled. This clause was used along with the “past
pattern of behavior” that, many years before, the man had been arrested
three times at “sit-in” demonstrations – all without any criminal
convictions.
In fact, the man had been originally issued his CHL – then later
reissued – with the sheriff’s full knowledge of these arrests.
Suddenly, for no apparent reason, the sheriff “got the willies” and
revoked the CHL. However, the “incidents” did not involve “unlawful
violence or threats of unlawful violence.” “The willies” were unfounded
– and did not meet the threshold of proof required by the statute.
(That man still has his CHL.)
However, this is the place where it becomes difficult. If this
section is the reason given in your letter, it will be a lot
harder to deal with. The reason is that, the way this is written,
it appears to give the sheriff the ability to yank your CHL
based upon his subjective opinion – the willies. Given
what we just said about judges being more likely to believe
law enforcement, this section poses the greatest hurdle. If
the sheriff can infect the judge with the sheriff’s own
willies, you are going to have a tough time.
To defeat that subjective feeling of willies,what you must do
is objectively break down each element of the above statute
as part of your defense. You must determine and then demonstrate
for the court:
What does the sheriff claim that makes the grounds “reasonable”?
What “past pattern of behavior” is the sheriff relying
upon?
How does that “pattern of behavior” “involve
unlawful violence" (as opposed to lawful self-defense)
or" threats of unlawful violence”?
Is the “pattern” comprised of a single incident
or are there “incidents” as the statute requires?
Do these “behaviors” show that you are “reasonably
likely” to “be a danger to self or others, or to
the community at large”? (If so, in what way?)
What kind of “mental or psychological state” is
the sheriff claiming you have?
What qualifications does the sheriff have to conduct “mental
or psychological” evaluations or diagnoses? (Note,
this part is particularly important. Sheriff's have complained
that judges often do not accept Sheriff's abilities to
make these kind of diagnoses.)
If you can break down the sheriff’s subjective evaluation
and show the court that there is no objective compliance with
this part of the statute, the judge might order your CHL reinstated.
Beginning the Process in Court
The first thing you will need to do officially is to file the
petition with the circuit court within 30 days. Bring your checkbook.
ORS 166.293(9) says, “Filing fees
for actions shall be as for any civil action filed in the court.
If the petitioner prevails, the amount of the filing fee shall
be paid by the respondent to the petitioner and may be incorporated
into the court order.”
In this state, those filing fees could be upwards of $200, so
be prepared.
There may be an alternative, though. You will have to call or
go to the court ahead of time to ask them about it. Depending
on the county, you might be able to get your filing fees either
waived altogether, or, at least, deferred.
This will involve a filling out a form declaring your income
and assets, signed in front of a notary. If you qualify, you
may not have to come up with the filing fee before filing.
You must make out the petition in a similar fashion to the one
here.
Sign it and make half a dozen copies (just to be sure). Also
make copies of the revocation letter to attach to the original
and each copy.
After making the copies, mark the original in the upper right-hand
corner of the page with the word, ORIGINAL. Attach the revocation
letter copies to the backs of each petition.
Take all of that to the county courthouse to the filing desk.
When you file it, make sure that all the copies are stamped
with the case number. The clerk will keep the original and as
many copies as the court requires. Put the remaining copies
in your own file.
Ask the clerk if you are responsible to serve the sheriff’s office. If
so, take a copy to the sheriff’s office and ask the receptionist if she
is allowed to “receive process” for the sheriff. If so, give it to the
receptionist. If not, ask to whom you should give it and follow those
instructions.
That done, the 15 days should commence. The court should contact
you about when they will schedule the hearing.
Going to Court
When you finally go to court, you want to be fully prepared.
Any document you plan to use in your case should be marked and
numbered – "Petitioner’s Exhibit 1, 2, 3",
etc.
You should have three copies of each – one is for you,
one is for the court, and the last one is for your opponent.
Organize your documents so that you can find them quickly when
you are in court.
If you are calling witnesses, makes sure they are there on time,
dressed presentably (as you should also be), and fully aware
of the kinds of questions you will have for them.
In a loose-leaf binder, you should have a list of questions
you want to make sure you ask your witnesses – so you
don’t forget. (It helps to put a small check mark next
to a question once you have gotten your answer.)
However, don’t be a slave to the list. If you think of
more questions that are pertinent while you are going though
the list, ask them.
Don’t be in hurry. Don’t get mad if the sheriff lies. Just remember,
your main objective is not to prove people are lying or
misunderstanding, but that you fully qualify for a CHL and that there
is no “reasonable grounds” – objective reason – to think you are a
danger to anyone.
If your
revocation was based upon the “mental state” section of the law,
remember to question the sheriff or his representative about the issues
previously mentioned.(Re His qualifications to make the diagnoses he
did.)
Courtroom etiquette calls for you to stand every time you address
the judge and address him as “Your Honor.”
If your opponent is speaking, but there is something he says
that you need to respond to, rise slowly so the court will know
you need to speak further and wait until the judge tells you
to proceed.
Conclusion
Pro se defense is a daunting task. If you have never been to
court before, it is even more so. However, with attention to
presenting a clear and detailed defense of your right to have
your CHL back, you could prevail. Some judges are impressed
with meeting level-headed, competent people in their courts
who are not “hiding behind” attorneys and that could
work in your favor. |
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© 2000 - 2008, Oregon Firearms Federation. All Rights Reserved.
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