There are new details into the investigation into the Santa Clara County, California sheriff’s office, which has been accused of engaging in a pay-to-carry scheme that saw donors to “independent” groups supporting Sheriff Laurie Smith’s re-election bid rewarded with concealed carry permits, which are nearly impossible for the average citizen in the county to obtain. Throughout that time, however, Sheriff Smith herself hasn’t had much to say, even when her top deputies were indicted by the San Jose District Attorney’s office.

Now that Smith herself has been indicted by a civil grand jury, however, we’re starting to hear a little more from the sheriff. The Bay Area law enforcement officer has fired back against the charges in court, and is even giving a comment or two to the local press.

According to court papers filed on Tuesday, Smith argues four of the seven counts in the accusation against her are legally insufficient and should be dismissed.

“I am gratified that the civil grand jury dismissed the most serious allegations,” Smith told San Jose Spotlight. “For the counts remaining, they are specious at best.”

Last December, a civil grand jury formally accused Smith of granting concealed weapon licenses to donors and political supporters and lying about accepting gifts. The accusation followed months of probes into Smith’s management of the county jail system by the Board of Supervisors, which voted no confidence in her leadership. Smith is also a likely target of the California attorney general, which is investigating possible civil rights violations committed by her office.

One of the “serious allegations” dismissed by the grand jury was a charge that Smith received a bribe in exchange for approving a carry permit, but the sheriff is still facing charges of willful misconduct or corruption in office.

1. Implementing a policy granting concealed carry weapons (CCW) permits to VIPs including campaign donors, Sheriff’s Advisory Board members, prominent individuals and personal connections;
2. Failing to investigate and determine good cause for issuing CCW permits to non-VIPs;
3. Failing to notify non-VIPs about the status of their CCW application, including keeping applications pending indefinitely;
4. Accepting an unlawful gift in 2019 of the use of a SAP Center suite for a Sharks hockey game, including tickets and suite food and beverage, collectively exceeding the maximum individual gift value limit;
5. Failing to report the gift in count 4 on her 2019 Statement of Economic Interests (Form 700);
6. Committing perjury in certifying that her 2019 Form 700 was true and complete;
7. Failing to cooperate and promptly provide records relating to the investigation around a jail incident in August 2018 regarding Andrew Hogan.

Smith’s defense suggests that, even if the practices of her office were unfair, they weren’t illegal.

In her response, Smith argues the accusation does not allege she issued a concealed carry weapon license to any unqualified people, or that she denied a license to any qualified applicants. She also claims the count is insufficient because it uses ambiguous terms like “prominent” and “VIP” to describe the alleged recipients of licenses.

“Who exactly is a ‘prominent individual’ in the community? An elementary school principal? What about the assistant principal?” the court record reads.

The second and third counts accuse Smith of failing to investigate applications for concealed carry weapon licenses. Smith argued the burden is not on the sheriff to investigate where applicants have good cause to receive licenses. According to Smith, the accusation doesn’t allege any specific incidents where she failed to investigate licenses, beyond vague references to “VIPs.”

According to the grand jury testimony, it sounds like there were plenty of specific allegations lodged against Smith, including an investigator the San Francisco District Attorney’s office (which is overseeing the civil grand jury because of a conflict of interest with the Santa Clara County D.A.) who discovered that fewer than 15% of all applicants were approved for a carry license between 2015 and 2019, but nine of the ten donors to Smith’s re-election efforts who applied for a permit were given a thumbs up.

Lara McCabe, a program manager in the sheriff’s office, testified that Smith said she opposed issuing CCW permits widely because “she doesn’t like to have a lot of guns out there on the streets.” Smith’s attorney and longtime political adviser Rich Robinson testified that Smith “would not issue CCW permits unless there was a demonstrated need.”

But her actions belied those claims, witnesses indicated.

Several permit applicants who were not donors described to the grand jury how they applied for CCW licenses because of documented stalking, death threats or physical abuse. Three did not even get a response, though state law requires a notice of approval or denial within 90 days. The fourth received a form letter citing a backlog in applications.

Meanwhile, a known campaign donor testified that he was passively guided by the sheriff’s office into providing his daughter’s address for his permit renewal because he had moved out of the county. Another longtime Smith donor, NVIDIA founder Chris Malachowsky, testified that he had no safety reason for applying, and left the “cause” field in the application blank, but was issued a permit anyway.

In contrast, and as was suggested in testimony before the earlier criminal grand jury, any permit application that didn’t have a green light from some combination of Smith, Sung or Jensen was left in a filing cabinet.

The sheriff is basically arguing that none of this rises to the level of actual corruption or criminal behavior because the “may issue” carry laws in California give sheriffs broad discretion in approving and denying permits based on a subjective determination of “good cause”.

Clearly the grand jury disagrees, though it remains to be seen how successful Smith’s argument will be if the case actually goes to trial. But the fact that she and her attorneys can even raise this argument demonstrates the fundamental flaw in “may issue” laws; allowing the arbitrary and capricious whims of a sheriff, judge, or any other issuing authority to determine whether someone can exercise their right to bear arms in self-defense not only leads to good people being deprived of their civil rights, but allows the wealthy, powerful, and politically connected to have almost exclusive access to a right that belongs to we the people. Get rid of “may issue” and substitute it with “shall issue” (or better yet, permitless carry) laws and the opportunity for graft goes away. Keep them on the books and I guarantee that Sheriff Smith and her deputies won’t be the last law enforcement officers accused of concealed carry corruption.