Sheriff disputes corruption accusations
Smith challenges allegations that she flouted the law in issuing concealed-weapons permits
The attorney for embattled Santa Clara County Sheriff Laurie Smith is challenging the validity of the corruption accusations that could expel her from office, arguing her handling of concealed gun permits have been proper and within her authority.
Allen Ruby's arguments, contained in a legal motion submitted to San Mateo County Superior Court Judge Nancy Fineman, are the first substantive glimpse of Smith's legal defense. Ruby challenges the validity of three of the Santa Clara County Civil Grand Jury's formal accusations that as a matter of policy, she steered concealed-carry weapons permits to financial and political supporters, and people with prominent figures, and ignored or shelved permit applications for people who weren't socalled “VIPs.”
Thursday, Smith, 69, announced that she is not running for a seventh term, ending a nearly 50-year career with the sheriff's office, with about half of that spent leading the agency. She cited what she called “specious” attacks on her — including the gun-permit scandal — as a factor in her decision.
Ruby's motion argument referenced the wide discretion that state law gives county sheriffs in handing out the permits, and contends that the civil grand jury has not accused her of any specific instance of rejecting a valid CCW application or approving an invalid one.
“Since the statute itself confers the broadest possible discretion upon the Sheriff in selecting among applicants, and the Accusation does not claim that she made even a single misjudgment, as a matter of law there was no `misconduct in office,' ” Ruby wrote.
He added that the grand jury's use of “prominent” in describing people who allegedly received special treatment is so ambiguous that it makes mounting a defense unfairly burdensome.
Regarding a second CCWrelated accusation, alleging that Smith's policies and practices ignored her obligations to sufficiently vet non-VIP applications for good cause, Ruby argued that the state puts the burden of showing that cause on applicants, not Smith. He returned to his argument about the nebulous state of who constitutes a VIP in objecting to a third corruption accusation, alleging that Smith's office put non-VIP applications in a limbo state by not moving forward with criminal background checks to elude a mandated 90-day response deadline to applications.
“Without knowing who the People will claim are and are not VIPs, Defendant has no feasible way to prepare for trial,” Ruby wrote.
The gun permit-related accusations from the civil grand jury appear to be based on testimony from Smith's staff, permit recipients, and witnesses who San Francisco prosecutors described as non-VIP permit applicants. Collectively, that testimony asserted that Smith's working policy for CCW permits prioritized political donors and people with high public stature, while nonconnected ordinary residents saw weeks and months go by without a response, if they got one at all.
Witness accounts given to the jury also presented juxtapositions in which people who had imminent safety concerns did not get timely attention or consideration, while so-called preferred applicants got permits relatively swiftly, even if they didn't provide a cause for why needed a CCW permit and even if they no longer lived in the county, which would make an applicant ineligible.
Smith in her filing also challenged a grand jury accusation that she committed willful misconduct by refusing to cooperate with and stalling a civilian auditor's investigation into how her office responded to the 2018 injuries to Andrew Hogan, who during a psychiatric emergency sustained severe head injuries while riding unrestrained in a jail-transport van. That auditor investigation is keying in on why an internal investigation into the injuries — which later netted a record $10 million county settlement — was abruptly ended with no conclusion or findings of discipline for any of the deputies or commanders who stood outside the van after it arrived at the Main Jail as Hogan screamed for help and lapsed in unconsciousness from brain injuries.
Ruby wrote that the misconduct accusation from the grand jury is “hopelessly vague” in calling it legally insufficient.
The objection memo, which was filed March 1 and first reported by San Jose Spotlight, calls for the dismissal of four of the grand jury's accusations, the three CCW-related counts and the count involving the jail investigation. But the filing does not challenge three other corruption accusations against Smith, which allege she improperly accepted the donation of a gun-permit recipient's luxury box at a 2019 San Jose Sharks game meant to celebrate her re-election to a sixth term the previous fall.
Ruby declined to comment on why he and Smith did not file any objections to the civil grand jury's corruption accusations regarding the Sharks suite and alleged gift-reporting violations.
Testimony to the grand jury described Smith as ordering a member of her staff to buy cheaper seats to the same game, expressly to avoid scrutiny over her and her commanders' use of the luxury box, which would have violated state law prohibiting officeholders from accepting gifts totaling more than $500 from a single source.
The civil grand jury rejected bribery allegations against Smith involving both the CCW and Sharks game matters, though the latter issue remains the subject of a separate criminal bribery indictment for two of Smith's commanders and Harpreet Chadha, the owner of the luxury box. Chadha has characterized his indictment as retaliation from prosecutors after he refused to call his suite donation a bribe.
San Francisco prosecutors were appointed to lead the grand jury to resolve a conflict of interest issue with the Santa Clara County district attorney's and county counsel's offices, and the case is being heard in San Mateo County because the Santa Clara County Superior Court recused itself in part because Smith's office runs the court's security.
If the civil grand jury accusations advance to trial, and if just one of them is affirmed by a trial jury, Smith would be removed from office. Her next court appearance is scheduled for April 26.