In re: Duvall, ___ N.C. App. ___, 834 S.E.2d 177 (Oct. 15, 2019)

The petitioner appealed the district court’s denial of his concealed weapon permit. The Mecklenburg County Sheriff’s Department denied his application, citing information received from the Veteran’s Affairs (“V.A.”) that indicated the petitioner was disqualified due to substance abuse issues. The petitioner had been diagnosed with post-traumatic stress disorder in 2016 and had experienced some suicidal ideation following the death of his young son (although he never attempted suicide). He also had some history of alcohol abuse and “concern over his drinking behavior,” but had not been treated for substance abuse specifically. The V.A. provided documentation to the petitioner indicating they did not agree with the Sheriff’s justification, and the petitioner provided that communication to the district court in his appeal. At hearing, the district court determined that the petitioner was disqualified under the substance abuse subsection and that he suffered a mental infirmity that prevented him from safely handling a firearm. He appealed, alleging due process violations.

G.S. 14-415.15 requires that the Sheriff notify an application of the reasons for denial of a concealed carry permit and explain the reason for the denial. A “bare bones” denial does not meet the requirement of the statute. Here, the Sheriff’s denial failed to contain sufficient information about the alleged substance abuse to afford the petitioner an opportunity to challenge that conclusion. The petitioner further had no notice whatsoever that his mental health beyond potential substance abuse issues would be considered at the hearing, or that his ability to safely handle a firearm would be at issue. The court rejected the argument that the Sheriff’s denial letter referencing the V.A. records provided notice that any matter within his V.A. records were potentially at issue. Because the denial letter referenced a specific subsection of the statute, the petitioner could not have known that other issues were in play. “Petitioner had no meaningful notice his mental health history would be either at issue or a basis for denial for inability to safely handle a firearm before the trial court.”

The petitioner also argued that the district court’s finding of substance abuse was unsupported by the record. Because no transcript of the hearing was contained in the record on appeal, the court was unable to review the oral evidence at the hearing. Normally it is the burden of the appealing party to establish the record on appeal, but here “the burden shifted to [the Sheriff] to show the alleged violation had no impact on the remainder of the proceedings, because [the Sheriff] violated Duvall’s due process rights. Without a transcript or narrative of what occurred at the hearing, [the Sheriff] cannot meet that burden.” However, the district court was ordered to apply the definition of “addict” from 21 U.S.C. 802 when determining whether the petitioner was disqualified for the permit under the substance abuse subsection. The case was therefore unanimously reversed and remanded for a new hearing. One judge wrote separately to concur in judgment.

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