On Tuesday, a judge rejected an attempt by Santa Clara County Sheriff Laurie Smith to overturn her corruption trial – citing a recent US Supreme Court ruling on concealed weapons licensing – paving the way for the trial to begin.

SAN JOSE, CALIFORNIA – AUGUST 17: Santa Clara County Sheriff Laurie Smith speaking at a press conference at the San Jose California Sheriff’s Office on Tuesday, August 17, 2021 (Anda Chu / Bay Area News Group)

On the eve of Smith’s civil trial – which begins Wednesday with the jury selection – San Mateo County Supreme Court Judge Nancy Fineman dismissed Smith’s solicitor’s request to dismiss six of the seven counts filed by the Santa Clara County Grand Jury last December.

Allen Ruby, Smith’s attorney, argued on Tuesday in the file and in court that the landmark Supreme Court ruling in the Bruen case in June, which overturned New York’s requirement that applicants for a covert-carrying license, showed “good reason” why they should be licensed by overruling similar California policies.

It was an ambitious legal step – and unproven, given the recent ruling of the Supreme Court. Fineman admitted this, saying that she was tasked with “making that first analysis of how Bruen complies” at the hearing level.

Ruby argued that the Supreme Court ruling invalidated all of the CCW California requirements, thereby overturning three allegations of corruption, alleging that Smith favored donors and political supporters in choosing who obtained gun licenses, failed to investigate other applicants’ declarations in a good case, and disregarded the mandatory deadlines for responding to the Application permission.

In fact, Ruby argued, litigation would be the enforcement of a law that is currently unconstitutional.

“The courts cannot enforce (the law), especially after finding a law partially or fully unconstitutional,” Ruby said on Tuesday. “The court has no jurisdiction.”

San Francisco District Attorney Gabriel Markoff, who accuses Smith, said the alleged abuse of discretion was illegal before and after the Bruen ruling. He argued that the Supreme Court ruling did not provide a “constitutional shield” for an alleged offense like Smith, but instead condemned it.

“It would be taking a Supreme Court case that explicitly condemns the arbitrary behavior the sheriff is accused of and using it as his defense,” Markoff said of Ruby’s argument from Bruen.

Fineman largely sided with Markoff, although she dismissed one corruption allegation partly because it related specifically to the “good cause” section of the CCW’s California statute, which Bruen had annulled. This figure accused Smith of “failing to investigate and finding a just cause” of CCW applicants from whom he had not sought favor.

“This is a very interesting case,” Fineman said after announcing his decision. ‚ÄúThis raises a number of problems. I will not be the last word.

Smith is now charged with five counts of “willful and corrupt” misconduct in how she and her office issued permits to carry stealth weapons. The county’s grand civilian jury accused her of strongly favoring campaign donors, supporters, and high-profile people while ignoring permission requests from ordinary residents. Three of these accusations are based on the jury’s findings that Smith had illegally accepted the use of the San Jose Sharks luxury suite from the donor and gun holder and that she disguised the use of the suite to circumvent gift reporting laws.

Fineman on Tuesday dismissed Ruby’s arguments that a number of luxury apartments had been tainted by the Bruen ruling, as they rely on the assumption that the apartment was surrendered to facilitate the donor’s CCW permit renewal.

Smith is also charged with sixth counts of willful misconduct for allegedly concealing information from a police investigation into former prison inmate Andrew Hogan, who in 2018 was seriously injured in a prison transport van during a psychiatric emergency and whose family later received $ 10 million from the county settlement . This number was not questioned at Tuesday’s hearing.

The forthcoming trial will be the first public testimony to be made on the CCW allegations, which are the subject of two indictments that entrapped Deputy Sheriff Smith and Captain, who was a close adviser, as well as several supporters. The testimony given to the grand criminal jurors in 2020 was kept secret by law – though transcripts were later published – as was the parallel testimony of several of the same witnesses to the grand jury last year.

Among those expected to testify are Christian West and Martin Nielsen, a former owner and manager at security firm AS Solution, who pleaded guilty to committing bribery offenses after working with investigators with the district attorney’s office. They admitted paying $ 45,000 – with the intention of paying $ 45,000 more – to an independent spending committee supporting Smith’s re-election in 2018 to obtain CCW approvals for their security personnel.

If Smith, who was elected California’s first female sheriff in 1998, were found guilty of any of the remaining corruption charges, she would be removed from office. Since she is not running for her seventh term, her expulsion would be tantamount to her departure a few weeks before the end of her term of office, which ends in January, although she would also be permanently deprived of her public office.

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