Santa Clara County Sheriff Laurie Smith is facing multiple charges of “willful and corrupt” misconduct for allegedly overseeing a pay-to-play scheme where donors to her re-election campaign or the sheriff’s office were able to obtain a concealed carry permit; something that was generally off-limits to the residents in the California county. This week, however, Smith sought to have those charges dismissed, arguing that thanks to the Supreme Court’s decision striking down the “may issue” laws in New York (and a handful of other states including California), she shouldn’t be prosecuted for disregarding a law that the courts have ruled unconstitutional.

It was an audacious request, and thankfully, San Mateo County Superior Court Judge Nancy Fineman ended up shooting down the novel legal theory, at least for the most part.

San Francisco Assistant District Attorney Gabriel Markoff, who is prosecuting Smith, said that the abuse of discretion alleged against her was illegal before and after the Bruen ruling. He argued that the Supreme Court decision did not provide a “constitutional shield” for alleged misconduct like that of Smith’s but instead denounced it.

“It would be using a Supreme Court case that expressly condemns the arbitrary conduct the sheriff is accused of engaging in and using it as her defense,” Markoff said of Ruby’s Bruen argument.

Fineman largely sided with Markoff, though she did dismiss one corruption count in part because it specifically referenced the “good cause” section of California’s CCW statute, nullified by Bruen. That count had accused Smith of “failing to make an investigation and determination of good cause” of CCW applicants from whom she wasn’t trying to curry favor.

“It’s a very interesting issue,” Fineman said after announcing her decision. “It raises a number of issues. I won’t be the last word.”

The judge’s ruling means that the case against Smith can proceed to trial, and jury selection is scheduled to start today. In addition to the case against Smith, prosecutors have also charged two of her high-ranking employees with felony bribery charges for allegedly accepting cash and gifts in exchange for issuing concealed carry permits.

Jon Golinger, an investigator for the San Francisco District Attorney’s Office – which oversaw the civil grand jury because of conflicts cited by Santa Clara County’s counsel and district attorney offices – testified that an analysis of records showed that between late 2015 and early 2019, just 36 of 248 new CCW applicants were granted licenses, a 14.5% approval rate. But of the ten donors who applied, nine were approved — a 90% success rate.

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, [Undersheriff Rick] Sung or [Sheriff’s Capt. James] Jensen was left in a filing cabinet.

The contempt that Sheriff Smith and her underlings allegedly displayed towards those Santa Clara County residents who were desperately hoping to obtain a carry license in order to protect themselves against stalkers and domestic abusers is absolutely infuriating. Thankfully the “may issue” laws that created the conditions for the bribery and graft alleged by prosecutors are no longer in place, but that shouldn’t mean that prosecutors shouldn’t have the chance to prove their case against the sheriff and all those charged in the pay-to-play scheme. Opening arguments are set for September 29th, and barring any last minute plea deal (always a possibility) we’ll be covering Smith’s trial extensively here at Bearing Arms in the coming days.