Thursday, 17 October 2019 13:55

Appeals Court chides sheriff for denying concealed handgun permit

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RALEIGH — The N.C. Court of Appeals determined the Mecklenburg County Sheriff’s Office violated a Vietnam veteran’s due process rights by denying his application for a concealed handgun permit.

Paul Valone, president of Grass Roots N.C., says the case is part of a larger issue of sheriffs failing to uniformly enforce concealed handgun permit laws.

“For years, GRNC has worked to reduce arbitrary and illegal denials of concealed handgun permits and concealed handgun permits,” Valone said. “Clearly, more work needs to be done in getting sheriffs to obey the law.”

In the Oct. 15 ruling, the appeals court ordered a lower court to reconsider the sheriff’s office’s rejection of Howard Duvall’s application. In the majority opinion, the court argued the sheriff’s office violated Duvall’s due process rights by failing to properly notify the Vietnam veteran why it denied his permit application.

In a concurring opinion, Judge Richard Dietz wrote that the State created a process for reviewing and issuing concealed carry permits. The process requires the sheriff’s office to notify the applicant in writing if their application is denied, and include the reason for denial.

Duvall didn’t learn the MCSO based its denial on mental health records from the Department of Veterans Affairs until the case reached the trial court.

“The Sheriff’s office did not follow that process — it sandbagged Duvall by asserting a new ground for denial at the court hearing,” Dietz wrote.

Valone said requirements for a concealed carry handgun permit haven’t changed much since 1995. An applicant has to take a course on gun laws and safe handling, plus pass an FBI criminal background check. Violent misdemeanors or felonies disqualify people from obtaining a concealed carry handgun permit.

“The bottom line is the concealed handgun permit does not allow the sheriff discretion like a pistol purchase permit does to decide whether you’re a good moral character or anything that subjective,” Valone said.

Even so, Valone finds troubling a requirement that applicants can’t have any physical or mental infirmity preventing them from handling a handgun safely.

“Sheriffs have no qualifications to decide that,” Valone said. “That is why we get denials for PTSD diagnosis, which should not be disqualifying.”

On May 18, 2018, Duvall received MCSO’s rejection for his concealed handgun permit. The denial cited substance abuse and “information received from Veteran’s Affairs.”

Duvall contacted his primary care physician at the Charlotte Veterans Administration Clinic asking if anything in his record would lead the MCSO to believe he had a substance abuse problem. A registered nurse from the VA clinic said she didn’t see anything and suggested Duvall contact the MCSO for clarification.

On June 26, 2018, Duvall filed a formal appeal with the Mecklenburg County District Court. The district court denied Duvall’s appeal after a Sept. 4, 2018, hearing. In its ruling, the district court agreed with the MCSO’s findings that Duvall had a substance abuse problem related to drinking. The district court also found he was unqualified under the safe handling subsection because he had “PTSD and suicidal ideation.”

Duvall argued that there is no evidence he has an unlawful substance abuse problem. Since there was no district court transcript of the hearing, the Court of Appeals was limited in how to address the issue.

In the ruling, the Court of Appeals noted the only references in Duvall’s VA medical history are of “possible substance addiction, not unlawful use.” With that in mind, the court ordered the lower court to use the standard definition of an “addict” when applying the substance abuse subsection.

The N.C. Sheriffs Association didn’t respond for comment by publication time.

“The larger issue for us would be the fact that we have a consistent problem with sheriff’s departments — particularly the Mecklenburg Sheriff’s Department failing to adhere to the laws with respect to issuing both concealed handgun permits and pistol purchase permits,” Valone said.