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In re Appeal for a Concealed Handgun Permit by Duvall

Court of Appeals of North Carolina

October 15, 2019


          Heard in the Court of Appeals 4 September 2019

          Appeal by petitioner from order entered 4 September 2018 by Judge Alicia D. Brooks in Mecklenburg County No. 18 CVD 12761 District Court.

          Redding Jones, PLLC, by Ty K. McTier and David G. Redding, for petitioner-appellant.

          Womble Bond Dickinson (US) LLP, by Sean F. Perrin, for respondent-appellee Mecklenburg County Sheriff's Office.

          TYSON, JUDGE.

         Howard Duvall, III ("Petitioner") appeals from an order denying his application for a concealed handgun permit. We reverse the district court's order and remand.

         I. Background

         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 successfully completed his gun safety training course and then applied for a concealed handgun permit on 16 March 2018. Petitioner completed and filed the sworn, notarized application, checked the appropriate boxes, attached a copy of his DD-214 military service discharge, and paid his application fees. On his application, he checked "Yes" for successful completion of an approved firearms safety and training course and attached his Certificate of Completion.

         Petitioner 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.

         After receipt of the denial of his application from MCSO, Petitioner emailed his Primary Care Physician at the Charlotte Veterans Administration ("VA") Clinic on 3 June 2018:

Apparently, the Sheriff's Department believes that I am an "…unlawful user of or addicted to …[] (a) controlled substance…" based upon "information received from Veterans Affairs."
I am not aware that I am now or ever have been an unlawful user of or addicted to a controlled substance. It is very disturbing that the sheriff has reached this conclusion.
Will you please let me know what is in my records that would lead them to this conclusion and help me correct the information?

         The next day, a registered nurse employed at the VA Clinic replied: "I do not see where your primary care provider is prescribing you any controlled substances. I also don't see at first glance what this denial could be in reference to." The nurse recommended Petitioner contact MCSO for more information about the basis of his denial.

         On 25 June 2018, Petitioner sent a letter to the Chief District Court Judge in Mecklenburg County, enclosing a copy of MCSO's initial denial and the reply email from his nurse, and asked that the court consider his letter as his appeal. The next day, Petitioner filed pro se a formal appeal with the district court. The court set a hearing for 4 September 2018, and served both Petitioner and MCSO with notice. MCSO sent Petitioner a copy of the records submitted to the district court on 22 August 2018.

         After the hearing on 4 September 2018, the 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 ...

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