The Volokh Conspiracy
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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."
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.
