Guns

Guns and Due Process

"Petitioner had absolutely no prior notice that either his mental health or the safe handling subsection would be at issue during the hearing before the trial court."

|The Volokh Conspiracy |

From In re Duvall, decided Tuesday by the North Carolina Court of Appeals (Judge John Tyson, joined by Judge Reuben Young, and with a separate opinion by Judge Richard Dietz):

Petitioner is a decorated Vietnam combat veteran, who served in the U.S. Army for five years and received an honorable discharge from his service. He earned a Bachelor's Degree in Industrial Management and a Masters of Business Administration degree. Petitioner developed and owned a real estate development company, which he sold in 2011 and retired in 2013.

Petitioner applied for and received a permit to purchase a handgun from the Mecklenburg County Sheriff's Office ("MCSO") on 15 September 2017. He … applied for a concealed handgun permit on 16 March 2018…. [On his application, he] checked the "No" box to indicate he did not "suffer from a physical or mental infirmity that prevents the safe handling of a handgun." This language refers to N.C. Gen. Stat. § 14-415.12(a)(3) (2017) [hereinafter the "safe handling subsection"]. He also checked "No" to indicate he was not "an unlawful user of (or addicted to) marijuana, alcohol, or any depressant, stimulant, or narcotic drug, or any other controlled substance as defined in 21 U.S.C. § 802." This language refers to N.C. Gen. Stat. § 14-415.12(b)(5) (2017) [hereinafter the "substance abuse subsection"].

The record shows a clerk at MCSO cleared Petitioner of any prior criminal or other disabling record on 5 April 2018 and Petitioner was provisionally approved for issuance of a concealed handgun permit, pending final review. On 18 May 2018, MCSO denied his application, citing the substance abuse subsection. The notice of denial also stated, "YOU ARE DENIED BASED ON INFORMATION RECEIVED FROM VETERANS AFFAIRS."

Petitioner's medical records show a diagnosis of acute PTSD following military combat, entered on 12 September 2016. Petitioner also has a prior record of "alcohol abuse, unspecified drinking behavior." At a therapy session on 12 March 2018, Petitioner had expressed "concerns about his drinking behaviors." At a session on 26 March 2018, Petitioner reported that he "continues to monitor his drinking habits" and would request a referral to Substance Abuse Services, "if he needs or has been unable to make changes on his own."

Petitioner had lost a young child to sudden infant death syndrome and the records show he acknowledged, "having several [suicidal] thoughts in the past, with a plan, but has never acted on any of them." Petitioner denied any history of suicide attempts. This history was not a stated basis for MCSO's denial of Petitioner's application.

[The MCSO denied the concealed carry permit application on the grounds that he was an "…unlawful user of or addicted to …[ ] (a) controlled substance…" based upon "information received from Veterans Affairs." -EV] …

[T]he district court denied Petitioner's appeal. The district court made two findings of fact. In addition to agreeing with the MCSO's finding that Petitioner was disqualified as being addicted under the substance abuse subsection, it also found he was unqualified under the safe handling subsection. Next to the safe handling finding, the court made a handwritten notation on its order denying Petitioner's appeal: "PTSD + suicidal ideation." …

Factually, Petitioner argues no evidence supports the district court's conclusion that Petitioner is an unlawful user of or addicted to marijuana, alcohol, or any depressant, stimulant, narcotic drug, or any other controlled substance as is defined in 21 U.S.C. § 802. Statutorily, Petitioner argues that the safe handling subsection was not the proper subsection under which MCSO or the district court could deny an applicant for mental illness or fitness reasons.

Constitutionally, Petitioner argues … due process protections require prior notice and an opportunity to be heard at a meaningful time and manner before denying him a permit ….

[We agree that] the lack of prior notice and the "bare bones" denial of his application by the district court denied him due process….

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." … In addition to prior notice, a "fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'"

Under the concealed handgun statute, "[i]f the sheriff denies the application for a permit, the sheriff shall, within 45 days, notify the applicant in writing, stating the grounds for denial." … Petitioner received a reference to a specific subsection for the sheriff's denial, but the mere citation to and recitation of the substance abuse subsection in the statute did little to afford Petitioner a meaningful manner, notice, or opportunity of knowing the basis of the denial and which issues were to be resolved by the adversary process on appeal.

Petitioner had absolutely no prior notice that either his mental health or the safe handling subsection would be at issue during the hearing before the trial court. MCSO did not find Petitioner to be unqualified on that basis or under that subsection. MCSO's denial did not inform Petitioner that any mental or physical infirmity calling into question his ability to safely handle a firearm would be an issue on appeal….

Petitioner also argues MCSO's and the district court's conclusions that Petitioner was disqualified under the substance abuse subsection as addicted to a controlled substance under 21 U.S.C. § 802 (2018) is unsupported…. [O]n remand MCSO and the district court must use and apply the specifically incorporated definition of "addict" from 21 U.S.C. § 802 …[,] " … any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction." …

Judge Dietz's separate concurrence agreed with the due process analysis, reasoning that the Sheriff's Office "sandbagged Duvall by asserting a new ground for denial at the court hearing," but would not have opined further on what the government must prove on remand.

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  1. How much bearing does this have on future attempts to rein in red flag laws?

    1. None. It was a blatant disregard for due process.

  2. “Petitioner’s medical records show a diagnosis of acute PTSD following military combat, entered on 12 September 2016.”

    So they diagnosed a Vietnam veteran with PTSD 40 years after the fact?

    1. “So they diagnosed a Vietnam veteran with PTSD 40 years after the fact?”

      The text “Petitioner had lost a young child ” suggests that they attributed the PTSD to losing the child rather than to the war. It doesn’t say which year the child died.

      1. That’s how I read it too. Don’t assume VA diagnosis + PTSD = service-related PTSD.

  3. Let that be a lesson to folks. If you might want to possess firearms in the future, don’t seek mental health treatment.

    1. Ah yes … the “be a man” approach to mental health. Which has resulted in so many “well-adjusted” white male adults with no issues.

      1. /Whoosh

        1. Hahaha! @regexp truly doesn’t get it.

      2. It’s not “be a man”. It’s the fact that seeking mental health help can end up following a person for years with negative consequences.

        The best way to end up with a bunch of people with untreated mental health issues is to foster a system where they are punished and marginalized for seeking help.

        1. ThomasW, could there be an argument that withdrawing pistol and ball from would-be suicides is a humane principle, and thus the opposite of a punishment?

          More generally, the mental health profession includes practitioners who are sensitive to the needs for complete patient privacy, and who either do not keep, or will not disclose that they have, notes which damage the interests of the patient. Finding one of those might complicate an already difficult search for help, but it is worth noting that they do exist. You might find that some of those privacy-respecting practitioners would take that only so far, and not extend the privilege to a patient who was a threat to others.

          1. If they’re actually would-be suicides, sure.

            If they one time, had an issue, 30 years ago? No.

            1. “If they’re actually would-be suicides, sure.”

              It’s still not fine. You don’t want people saying, “Well, maybe I should talk to the doctor about these suicidal thoughts, but if I do, I won’t be able to own guns again, so maybe I just handle this myself.

              1. Not “won’t be able to own guns again” but instead “temporarily will have firearms restrained until current suicidal thoughts have subsided”

                This actually isn’t that controversial. What’s controversial is when the thoughts have subsided, that the guns are “still” taken away

                1. It’s still the same problem. If you take away people’s freedom because they seek mental health treatment, people will be less likely to seek mental health treatment.

                  And of course, you don’t know what the eventual consequences will be. Even if today there are few consequences for sharing thoughts like these, who knows what will happen once you create a record. This is why absolute confidentiality is so important.

            2. Why would harboring thoughts of suicide be a valid reason to take away their guns? What else should we do, lock them in a room so that they don’t have access to a car, a bridge, a lake, or a rope?

      3. “Which has resulted in so many ‘well-adjusted white male adults … .”

        Shame on you for your racism.

        1. “Shame on you for your racism.”

          +1

          No black man is the US ever avoided going to a therapist, just whites.

          Latinos even have a word for what he is describing, “machismo”, but its just whites.

    2. I wonder if most veterans realize that Veterans Affairs seemingly hands out their medical records to anyone asking for them? What happened to doctor/patient confidentiality? I think that this would cause many vets to refrain from seeking help for psychological issues.

      1. That’s what I don’t get. A doctor is almost always prevented from giving testimony against their patient. How are these records admissible at all?

        1. I don’t know about NC, but in WA you have to give blanket permission to disclose any and all health records from any provider in order to purchase a handgun.

      2. “I wonder if most veterans realize that Veterans Affairs seemingly hands out their medical records to anyone asking for them?”

        I do now.

        “I think that this would cause many vets to refrain from seeking help for psychological issues.”

        Yep. From now on it’s all smiles and; “I’m doing just great, couldn’t be happier.”

      3. It appears to be a criminal violation of the HIPPA law.

        And, as a veteran who uses the VA, I am truly shocked and disgusted that the VA released that information! Good grief – the VA tries to be supportive of vets with PTSD and TBI, but this flies in the face of that.

        I’d like to know a lot more about how those records were released, and who did it!

  4. Seems like a very reasonable result. Regardless of our personal opinions re guns; I think we can all agree that at *any* type of hearing, we should be given reasonable advance notice of what will be going on at that hearing. That sort of basic procedural due process seems pretty uncontroversial.

    1. santamonica811 wrote: “That sort of basic procedural due process seems pretty uncontroversial.”

      Except in college sex assault cases of course.

      1. Those cases don’t need it, because getting kicked out of college and branded a sex abuser for the rest of your life, getting into a crappy follow-up school, and all of that dogging your income for the rest of your life is just a small civil thing, like a parking ticket, and so doesn’t qualify for due process.

  5. “Abandon All Rights, all Ye Who Pass This Threshold”

    Should we post that at the door to every therapists office?

    If we want to do this red flag thing (and I think we should), there needs to be well defined and nationally uniform standards and definitions and due process and procedures for people to regain their rights when they get better. There must also be disclaimers and warnings for potential patients before agreeing to therapy.

    In other words, an all the kings men and all the kings horses national effort to draft a model law.

    1. How about we start with providing Due Process BEFORE the rights are mysteriously taken away.

      You know – like the Constitution requires?

    2. “Abandon All Rights, all Ye Who Pass This Threshold”
      Should we post that at the door to every therapists office?

      Maybe we should realize this is actually invisibly painted on the INSIDE of the door to every residence?

      Welcome to the revolution.

    3. “If we want to do this red flag thing (and I think we should), there needs to be well defined and nationally uniform standards and definitions and due process and procedures for people to regain their rights when they get better.”

      If we want to do this RICO thing (and I think we should), there needs to be well defined and nationally uniform standards and definitions and due process and procedures for people.

      If we want to do this civil asset forfeiture thing (and I think we should), there needs to be well defined and nationally uniform standards and definitions and due process and procedures for people.

      Yeah, it has worked so well in the past.

  6. Wow… Reading the full court case really puts this in better perspective. It’s just all out due process violations, all the way

    Veteran: “I want a concealed carry permit”

    Sheriff’s office: Initially…OK. Then… “No. Because… reasons.”

    Veteran: “What? What reasons? This makes no sense! To court!”

    Sheriff’s Office (District court): “Oh, these new reasons we say we found. What? Discovery? No, we’re just telling you about them now”

    Vet: “That’s absurd! You’re telling me about these reasons now? Appeal!”

    Appeal Court: “Where’s the transcript, so we can review?”

    District court: “Uh…recording machines were broken. No transcript..”

    Right…..

  7. It seems like there is a first amendment problem here as well. Can they deny you a permit based only on your thoughts? Talk about thoughtcrime!

    1. Yes. They can deny you a permit to exercise you constitutional right just for the hell of it. So you do not actually have any constitutional rights.
      As predicted by the crazy right wing bigots decades ago, they blew away the second, now they are openly working on the first, fourth, and fifth.
      Want to guess on that is going on behind closed doors in secret committee hearings of democrats only? I mean besides “impeachment hearings”.

  8. If you want to encourage people to be dishonest with their doctors and hide any potential problems, congratulations, you succeeded.

    You now have a situation where a man was denied access to firearms, which he is trained and skilled in their use, simply for acknowledging depression after a serious, negative life event. Anyone reading this will now be very unlikely to speak to their doctor about anything that they.

    This is the VERY REASON THAT WE HAVE DOCTOR-PATIENT PRIVILEGE. In fact, I find the fact that Veteran’s Affairs disclosed these facts to be a gross violation of this fundamental privilege, not to mention all medical secrecy regulations this side of HIPAA

  9. I have not read the full article/ruling. However, for a considerable amount of time I have been bothered by the possible repercussions to exercising 2A amendment rights by persons who have sought or have required some sort of mental health care. I am not a veteran, however due to a catastrophic automobile accident, I have a pretty severe case of PTSD. Car horns freak me out, if another car juts out in front of me, I literally get cold sweat. I get nervous in traffic. On the other hand, I am a lifelong firearms owner, competitive shooter and hunter. I am even one of the few of the “last line of defense” to be sold a rifle by the U.S. Army as “civilian militia” through the Director of Civilian Marksmanship program. It took me 2 years to qualify to purchase the rifle. Why should I have to fear talking to a counselor about how I get scared and almost re-live my wreck when I drive because it might eventually cause me a problem with the future purchase of a new firearm? Or keeping the ones I have owned for the last 45+ years?

  10. I bring up Douthat in part because I worry folks like him might be susceptible to the allure of what Ahmari is offering: a righteous-sounding excuse to give in to the same kind of base temptation that makes you wish, upon encountering a world-class jerk, that you could pop him in the face. You restrain yourself because you know that physical violence is not an appropriate response to rude words…even if you’re a little bit rueful about it.
    http://situsqqpokerv.com

  11. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” … In addition to prior notice, a “fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'”

    Every “Red Flag” law in the country that I’m aware of violates this “elementary and fundamental” requirement of Due Process. When can we expect Volokh writers to comment on this and stand up for those rights too?

    1. One gun rights supporter I know pointed out that Red Flag laws actually *are* due process, as awful as that process might be, but that’s not what’s wrong with them.

      The problem is that Red Flag laws assume a person is dangerous, so people come along and take that person’s guns, but leave him alone. What’s to keep that person from getting a knife? Or a rope? Or gasoline and matches? Or even a gun or two that no one knew about? If this person is really a danger to self and others, why are we allowing him to roam the streets, after doing something that would very likely cause resentment, and perhaps even pushing him over the edge?

      Red Flag laws are idiotic for this reason alone.

      I’m not entirely convinced that Red Flag laws satisfy due process, but even if they are, it’s a rotten process to subject someone through, particularly when there are courts that have ruled that the State doesn’t have to provide representation if someone wants his guns back, but can’t afford to hire a lawyer.

      Sadly, this is something that the Courts are likely to rule as “Due Process”. After all, look at what they’ve done to the 4th, when it comes to “Reasonable Searches and Seizures”. The Supreme Court itself has concluded that “civil” forfeiture is Constitutional, after all!

  12. It’s interesting reading the outrage over restrictions that apply to certain rights, while many of the same people likely support restrictions on other rights. Maybe there is something to Justice Thomas’ complaining about privileged rights and preferential treatment of some over others.

    1. “It’s interesting reading the outrage over restrictions that apply to certain rights, while many of the same people likely support restrictions on other rights.”

      Why don’t you give us some examples?

      1. The accused in gitmo
        Some here are against incorporation generally
        Illegals don’t have rights
        Neither do citizens accused of not being citizens near the border
        The 14th doesn’t apply to women, gays, or transgenders
        Restricting the franchise
        Establishment Clause
        Lots of cruel and unusual punishments

        1. Oh, and abortion of course.

        2. All of the “rights” that we supposedly support restrictions on aren’t rights at all, but nonsense leftists have read into the Constitution.

        3. I think Quantum might have come up with some that are a bit less hysterical but that was sort of what I was expecting. It probably isn’t worth it but we could drill down a bit:
          Restricting the franchise I suppose means voter id. Ok
          The part about the 14th is just nonsense as is the cruel and unusual punishments.
          Illegals don’t have rights means to you I guess that they don’t enjoy all the rights of citizens but they do have the rights of persons to due process, protection from crimes against them, etc.

  13. Odd that stigmatizing the mentally ill when only 3% are violent is unacceptable while stigmatizing the 12% of veterans with PTSD is a blanket justification for denial of civil rights. Profiling is is our evolutionary make-up but should not be in our laws.

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