My CHP appeal is heading to the NE Supreme Court

[XDHusker]

I've posted a couple times in the past about my permit denial from the State Patrol, but wanted to let you guys know I'm heading to the Supreme Court.
I know there's a lot of you who are very active in the legislature and legal side who follow these kind of things, so I figured I'd give you a heads up.

In 2008 I was convicted of attempted 3rd degree sexual assault which is the attempted touching of somebody and is a misdemeanor offense.  I won't go into the details because they're not really relevant, but it was an innocent situation that got blown way out of proportion.

From a legal standpoint it is a simple question.  Is my offense a "crime of violence" or not?  A 3rd degree sexual assault conviction is considered a crime of violence, but there's no legal precedent in NE for a misdemeanor "attempted" version of any crime of violence being considered a "crime of violence".  So, if it is a "crime of violence" I don't get my permit, and if it isn't then I do.

The state patrol basically said in the initial appeal hearing that it was a yes or no type of question, but then they ranted on about public safety and legislative intent and ultimately denied my permit because they "felt" I would be dangerous (my words).  I appealed to the district court and the judge said the same thing.  It's a simple question of whether this is a crime of violence or not and then proceeded to ramble on about nothing and just affirmed the state patrol's decision without saying anything about my offense being a "crime of violence" or not.

I appealed again to the court of appeals and they immediately punted my case over to the supreme court without hearing it.  My attorney assumed they considered it a matter of first impression.

The other interesting piece of the whole puzzle is that I applied for and was granted an Omaha Handgun ID card which also has a requirement that you can't be convicted of a crime involving acts of violence.  So OPD doesn't consider it a crime of violence and the State Patrol does.

I know my conviction isn't one that garners sympathy and some of you may even feel that I shouldn't have a CHP, but I still wanted to bring my case to your attention because it could effect other misdemeanor disqualifications in the future.  I do open carry every day, but I would much prefer to conceal my handgun.

If you're legitimately interested in either following the case or getting involved I can send you the briefings.

[Chuck Matson]

Good luck with your challenge!

[Mntnman]

I find your case interesting. Have you looked into having your conviction expunged? I know it probably hasn't been long enough. I have a friend that was in a car when those with him robbed a quick shop. A couple of years ago he applied to have his conviction (forgiven?) and he was successful. He is one of few people outside my family that I would trust to watch my kids. I am glad that his youthful mistake is not going to affect the rest of his life. He truly is a good guy, I have known him over 30 years.

I wish you luck!

[FarmerRick]

If you are not incarcerated or on probation of some sort, you should be able to carry a weapon in any manner you deem necessary in order to protect yourself and others.


I hope you win your fight.

[Gary]

Not trying to be unsupportive of another forum member, or 2nd Amendment supporter, however, a line in the sand needs to be drawn somewhere.  Just where would you like to see the line drawn?

It would seem to me, a conviction of sexual assault would be better drawn in cement, than sand for the objective of who and who cannot obtain a CC permit in Nebraska.

Appeal, overturn, expunge,  would seem like a better direction for you to follow. 

[NENick]

Not trying to be unsupportive of another forum member, or 2nd Amendment supporter, however, a line in the sand needs to be drawn somewhere.  Just where would you like to see the line drawn?

It would seem to me, a conviction of sexual assault would be better drawn in cement, than sand for the objective of who and who cannot obtain a CC permit in Nebraska.

Appeal, overturn, expunge,  would seem like a better direction for you to follow. 

Can't one be convicted as a sex offender for taking a pee in public?

[XDHusker]

I find your case interesting. Have you looked into having your conviction expunged? I know it probably hasn't been long enough. I have a friend that was in a car when those with him robbed a quick shop. A couple of years ago he applied to have his conviction (forgiven?) and he was successful. He is one of few people outside my family that I would trust to watch my kids. I am glad that his youthful mistake is not going to affect the rest of his life. He truly is a good guy, I have known him over 30 years.

I wish you luck!

I did look into expungement, but apparently Nebraska doesn't really do this.  The other option was to try and get the conviction set aside, but the judge gave me 60 days in jail which makes me ineligible for a set aside.

A Pardon is my only option, and I am going to pursue it, but as a general rule they won't really consider a pardon until after 5 years have passed, but it's better after 10 years.

[XDHusker]

Not trying to be unsupportive of another forum member, or 2nd Amendment supporter, however, a line in the sand needs to be drawn somewhere.  Just where would you like to see the line drawn?

It would seem to me, a conviction of sexual assault would be better drawn in cement, than sand for the objective of who and who cannot obtain a CC permit in Nebraska.

Appeal, overturn, expunge,  would seem like a better direction for you to follow. 

You're fine Gary and I take no offense at all.  As I mentioned, my conviction by it's very name isn't one that garners much sympathy.

However, I will say that you would be shocked at how easy it is to be convicted of "sexual assault".

In my case, I tried covering a young lady up because she was inappropriately exposed.  Unfortunately in our hyper sensitive legal system when you are charged with a sex offense you are guilty unless you can prove beyond all doubt that you are innocent.
If you smack a girl on the butt, she calls the police to report it you will be convicted of felony sexual assault.

So, I agree with you that sexual assaults in the form that most people think of shouldn't be allowed to possess a firearm, but you cannot be convicted of a contact sexual assault without it being a felony.  So, those are already banned from receiving a CHP.

The irony of this whole thing is I didn't even own a gun until after I was convicted because I never felt that my family and I were in danger before.  However, when the state decided to put me and my family on a public website and tell everyone that I'm a "dangerous predator" we became state sanctioned targets for violence and harassment.  I could go on for an hour describing all of the vile attacks that my wife and kids have endured.

I probably already said too much, because I don't want to turn this into a big debate about what offenses should and shouldn't be able to carry.  If you ask me, it's a stupid debate because anyone who wants to commit a crime is going to commit a crime.  I legally own a lot of guns, so if I'm going to go do something illegal why would I need a CHP?

[XDHusker]

are not incarcerated or on probation of some sort, you should be able to carry a weapon in any manner you deem necessary in order to protect yourself and others.


I hope you win your fight.

Thanks, I'm a big proponent of constitutional carry myself.  If you can legally own it, then you should be able to carry it.

[CitizenClark]

I did look into expungement, but apparently Nebraska doesn't really do this.  The other option was to try and get the conviction set aside, but the judge gave me 60 days in jail which makes me ineligible for a set aside.

A set aside wouldn't restore your gun rights, though. The power to pardon or to commute sentences is reserved by the state constitution to the Board of Pardons.

[unfy]

*sigh*

Skipping the initial charges and outcome of which ya gave no details and aren't really applicable to my upcoming comment ...

Two 'from the hip' (eek, a pun! nuuuUuuUuUu) comments:

a) 3rd degree seems to imply no force was involved (given that 2nd requires injury), which as you mention can include a slap on the ass.  so... slap on the ass and ya get name dragged through mud via the registry website ? horse**** 

b) the NSP and lower level court system treating the subject as taboo is b.s. in that taking a court case to the NSC aint cheap .  guns are taboo, rape topics are taboo, combined together just ugh.  It's like worse than 'teachers zomg' and 'think of the kids' combined.  surely a review of the case paperwork can show if there was any violence involved...

It'll be interesting to hear how this turns out.

[XDHusker]

b) the NSP and lower level court system treating the subject as taboo is b.s. in that taking a court case to the NSC aint cheap .  guns are taboo, rape topics are taboo, combined together just ugh.  It's like worse than 'teachers zomg' and 'think of the kids' combined.  surely a review of the case paperwork can show if there was any violence involved...

I think you very eloquently summed up the issues I've had up to this point during the appeal.
This should be cut and dry but it's been pretty weird from a legal standpoint.  I called the NESP before I applied for my permit and asked them what they used to determine if a crime was a crime of violence.  Their response was that they used the State v. Palmer definition where it's defined as:
“The Nebraska Supreme Court has defined “crime of violence” as “an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority.” ?State v. Palmer, 224 Neb. 282, 294, 399 N.W.2d 706, 717 (1986).”

In my case, there was no touching at all and there was most certainly no physical force.  As I mentioned, I was just trying to cover somebody up.

During my initial appeal hearing, the only thing the state patrol introduced was the initial police report, and my background check that showed the misdemeanor conviction.  In the original police report there was an untrue accusation that I had made physical contact.  However, I went to a full jury trial and was found not guilty of having any physical contact at all.  So, my attorney argued that the police report isn't even admissible because if it were true I would have been found guilty of a more severe crime.  It is just a report and has no factual basis in regards to the final disposition of my case.  I could have been accused of murder on a police report, but if I'm found not guilty in court then that's all that matters.

So, basically up to this point the NESP and the first judge are trying to use the accusation in the police report as the basis for me committing an act of violence.  The NESP is also arguing that an attempted act of violence is still close enough to deny the permit which is also counter to the law.

I know there have been several cases that I've read about here where the NESP is using arrest reports and accusations as a basis for denying CHP permits.  Mine is no different, IMHO.  I fortunately own a business and have the financial resources to fight them, and I truly hope that the Supreme court will follow the law and create a precedent for future individuals who are denied based on accusations to get their permits.

[bullit]

However, I went to a full jury trial and was found not guilty of having any physical contact at all.

If found "Not Guilty", why the below sentence?

but the judge gave me 60 days in jail which makes me ineligible for a set aside.

[XDHusker]

If found "Not Guilty", why the below sentence?

Sorry if that was confusing.  I was originally charged with 3rd Degree sex assault (contact)  and found not guilty.  I was found guilty of attempted 3d degree as a lesser included  offense.

[unfy]

I know there have been several cases that I've read about here where the NESP is using arrest reports and accusations as a basis for denying CHP permits.  Mine is no different, IMHO.  I fortunately own a business and have the financial resources to fight them, and I truly hope that the Supreme court will follow the law and create a precedent for future individuals who are denied based on accusations to get their permits.

This... is gonna go kinda weird and sideways (er, that is possibly off topic).

There was another thread here in the forum (I think from late last year ?) ... about a town (not L or O) that was pushing for using arrest reports as something related to gun stuffs.  Oh! It was that arrest reports would go on some kind of permarecord for use as just a data mining kind of thing.  Guns, immigration, whatever.

This seems related ?

[bkoenig]

This... is gonna go kinda weird and sideways (er, that is possibly off topic).

There was another thread here in the forum (I think from late last year ?) ... about a town (not L or O) that was pushing for using arrest reports as something related to gun stuffs.  Oh! It was that arrest reports would go on some kind of permarecord for use as just a data mining kind of thing.  Guns, immigration, whatever.

This seems related ?

I've been told (I can't remember where or by who) that when Cassidy was Chief in Lincoln he would pay off duty officers to go through pistol registration forms and cross reference them with arrest reports, and if there was a hit they'd show up and confiscate your firearms.  Not sure if it's true, but I'm inclined to believe it.

[AAllen]

This... is gonna go kinda weird and sideways (er, that is possibly off topic).

There was another thread here in the forum (I think from late last year ?) ... about a town (not L or O) that was pushing for using arrest reports as something related to gun stuffs.  Oh! It was that arrest reports would go on some kind of permarecord for use as just a data mining kind of thing.  Guns, immigration, whatever.

This seems related ?

I believe what you are thinking of is a bill that was brought to the legislature to have some misdemeanor crimes require the taking of finger prints at the time of arrest (violent misdemeanors, drunk driving, and a couple of others).  Currently this is something that is not required.  The discussion kind of went this way into a big brother data mining and tracking you kind of thing.

[unfy]

I believe what you are thinking of is a bill that was brought to the legislature to have some misdemeanor crimes require the taking of finger prints at the time of arrest (violent misdemeanors, drunk driving, and a couple of others).  Currently this is something that is not required.  The discussion kind of went this way into a big brother data mining and tracking you kind of thing.

This sounds relevant yeah.  Kinda like "i wasnt found guilty of anything, why am i being put into a criminal database" thing.

Yup, found it.  LB-318.

http://nebraskafirearms.org/forum/index.php/topic,7523.msg53271.html#msg53271


edit: uhhhhh maybe should close this avenue of conversation, it might be way offtopic and threadjacking ?

[Famous556]

I for one am very disappointed by the lower court and the NSP and am very pleased that you are getting your case taken to the NE supreme court. 

Despite the circumstances behind the charges and conviction... it seems that the charge you were convicted of (the only one which should matter) does not invove an act of violence by its very name "attempted".  I tire of these types of decisions being made by police officers.  It reminds me of when the man who killed an armed robber in Walgreens in Omaha was denied an Omaha pistol possession permit or whatever it's officially called because of a weapons charge he was not yet convicted of and that was ultimately dropped.  Guilty is Guilty once you're convicted, but the other charges should not be of any consequence once they are dropped or amended to a lower charge.  That's the nature of our legal system.  A dropped charge or amended charge should mean nothing forward from the point it is dropped or amended.

[TracyW]

Good luck in your fight!