RE: THE MATTER OF APPEAL FOR A CONCEALED HANDGUN PERMIT BY: HOWARD DUVALL, III, applicant.
in the Court of Appeals 4 September 2019
by petitioner from order entered 4 September 2018 by Judge
Alicia D. Brooks in Mecklenburg County No. 18 CVD 12761
Redding Jones, PLLC, by Ty K. McTier and David G. Redding,
Bond Dickinson (US) LLP, by Sean F. Perrin, for
respondent-appellee Mecklenburg County Sheriff's Office.
Duvall, III ("Petitioner") appeals from an order
denying his application for a concealed handgun permit. We
reverse the district court's order and remand.
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.
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.
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
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
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."
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.
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
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.
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.
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 ...