NFOA MEMBERS FORUM
General Categories => Carry Issues => Topic started by: ComputerCowboy on August 31, 2010, 06:12:45 AM
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Well here we go again. A lawyer at the state patrol office told me that they revoked my ccw permit because being arrested for ccw violation makes it so regardless of the legal outcome. The law that was passed clearly does not provide this provision as far as I can tell. Will speak with my lawyer today. I'm pretty sure he told me before that being guilty is a violation and being suspected of wrongdoing was not cause. My home town of Omaha is a hard place to live sometimes.
Ohh, keep in mind that I may have been trespassing without my knowledge as my only unlawful act. Sheesh
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IF you did not get a hearing It appears that NSP is violating their own rules. Unfortunately you would have to pay the costs for any hearing they grant
Section 12 of the CHP rules and Regulations states :
REVOCATION OF PERMITS
012.01 Any peace officer having probable cause to believe that a permit holder is no longer in compliance with any of the requirements for a permit found in Section 005 of these regulations shall bring an application for revocation of the permit to the County Attorney in the county in which the permit holder resides.
012.02 This action is to be prosecuted as a civil case by either the County Attorney or by the Attorney General in the event the County Attorney refuses or is unable to pursue the prosecution. Persons prosecuted under this provision are subject to revocation of their permit, an administrative fine of up to one thousand dollars ($1,000) and the costs of prosecution.
Section 5 states:
005 PERMIT ELIGIBILITY
005.01 An applicant must meet and maintain the following requirements:
005.01A Be at least twenty-one (21) years of age;
005.01B Not be prohibited from purchasing or possessing a handgun by
U.S.C. 922 as that section existed on January 1, 2005;
005.01C Possess the eyesight necessary for a Class ?O? operator?s license;
005.01D Not have plead guilty or nolo contendere or been convicted of a felony or crime of violence in any jurisdiction;
005.01E Not currently be adjudged mentally incompetent or have been found to be mentally ill and dangerous in the past ten (10) years. Emergency protective custody (EPC) does not disqualify an applicant unless it is followed by formal proceedings or treatment. (There are no time restrictions on the disqualification for this item under federal law 18 U.S.C. 922);
005.01F Current resident of the state of Nebraska having been a resident for at least the past one hundred eighty (180) days;
005.01G Have had no violations of any law of this state relating to firearms, unlawful use of a weapon, or controlled substances or of any similar law of another jurisdiction in the ten (10) years preceding the date of application.;
005.01H Not be on parole, probation, house arrest, or work release for any type of offense of any degree. This disqualification does not include pre-trial diversion unless it is from a jurisdiction which requires the offender to enter a guilty plea before diversion;
005.01I Be a citizen of the United States; and
005.01J Provide proof of training.
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Unfortunately, "Violation" is not a clear definition..... I brought this up at the Public hearing for the new CHP rules last month...
What is a violation? A ticket? A conviction? An arrest? Not clear.......
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I can't imagine that this could not be successfully argued to mean "Convicted". How can an affirmed right be taken away if you are proven innocent? Convicted or plea bargained...well then you can probably say goodbye to this little segment of your 2A rights.
Fly
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Either way the revocation requires a hearing. Computer Cowboy didn't get one
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I meant to also add, a successful argument will be quite costly unless you could get the NRA, or some other cash rich gun rights group, to sponsor your fight.
Fly
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I have known three people who appealed a "denial" (not a revocation). It was not costly at all, and in two of the cases it was very speedy. The appeal hearings are conducted over the phone.... If you can write an articulate appeal as to why your permit should not be revoked and request a hearing....
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Ok ok, it looks like they lied to me. The letter I got today says that ..oh heck I know you guys are very interested so I'll type what it say word for word.
By law, the holder of a Nebraska Concealed Handgun Permit must continue to meet all requirements for issuance of the permit at all times during which he or she holds the permit. The Nebraska State Patrol has received the following information indicating that you no longer meet the requirements for the Concealed Handgun Permit whivh was issued to you:
arrested 6-24-10 for Licensing/Registration Weapon and Carrying a Concealed Weapon
Persuant to Neb. Rev. Stat 69-2435, pertaining to Concealed Handgun Permits, you are required to return the permit to the Nebraska State Patrol for cancelation. Please return the permit to the Nebraska State Patrol, Concealed Handgun Permit Program, P.O. Box 94907 , Lincoln, NE 68509. The permit MUST BE RETURNED BY 9/14/2010.
If the permit is not returned for cancelation, an application for revocation of the permit will be filed with the County Attourney of the county of which you reside. The revocation action is prosecutable by the County Attourney or the Attourney General as a civil action, and may result in revocation of your permit, a fine of up to $1,000, and the cost of prosecution being assessed to you.
If you have questions, you may contact the Nebraska State Patrol, Concealed Handgun Permit Program at (402) 479-4018. We appreciate your cooperation in this matter.
Sincerely,
Kevin Knorr, Captian
Nebraska State Patrol
I read this to say we think you did something wrong and have no proof. We want you to just admit guilt and give us the permit. We threaten legal action but know we can't do more than make you come in to court where we will drop the charge for lack of evidence. We hope you have no legal councel and are clueless. Thanks.......
I will see how my Lawyer reads it.
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Keep us informed, I am very curious as to what your Lawyer has to say...
Greg58
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ComputerCowboy,
Any updates to this thread?
Allen
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New court date March 2 9AM. I'm headed to the capital to see what they try to make law today. Don't think I'll be early enough to be approved to speak.
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I suppose if they took your permit away pending the outcome of a trial for the violation, it would be understandable, assuming you got it back if found not guilty. I wouldn't think they'd be able to take it permanently simply for having been arrested, but what do I know?
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if you are no longer eligible you must voluntarily surrender the permit. the hearing, is to forcefully take it because you did not give it up as required. you could of been subject to fines.
a fugitive, as the nsp defines it, is someone with a warrant or pending prosecution. technically you can't buy fireArms either. i know it's bs
I don't know exactly what happened but ima little ticked you did this, it brings us all under fire. it sounds like a poor choice was made.
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What? Angry at me? You make it sound like I wanted to test the law or bring unwanted attention to gun control in Nebraska. I guess no matter what you do someone will be angry.
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What? Angry at me? You make it sound like I wanted to test the law or bring unwanted attention to gun control in Nebraska. I guess no matter what you do someone will be angry.
As I recall your story, you left your gun unattended in a backpack in a posted no-gun zone. Is my recollection accurate?
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Mud Mud Mud. Back to troll me again? Have a nice day.
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Mud Mud Mud. Back to troll me again? Have a nice day.
Not trolling you. Just making sure I correctly recall your situation. I guess so.
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Sorry, I had to lock this while I was at work, but I needed to nip these personal battles in the bud.
Computer Cowboy has not been convicted of any violations, and it is unfair to act as if that were the case.
This thread is on probation....
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New court date March 2 9AM.
Update, please. I'm truly interested in this process and your case in particular.
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There has been an update posted here:
http://www.nebraskafirepower.com/forum/index.php?topic=2419.msg24912#msg24912
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There has been an update posted here:
http://www.nebraskafirepower.com/forum/index.php?topic=2419.msg24912#msg24912
What's the gist of it? I can't access that forum.
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Case was dismissed. He now has to sue the city to get his gun back, and file an appeal to the NSP to get his CCW back.
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What is the legal precedence that allows the government to keep ones property when the original charges are dropped? It is no longer "evidence" for a crime since the person is not being charged. If there is no charge, then there is no conviction that would preempt them from possessing a firearm. What gives?
Fly
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I'm locking this, things are starting to become personal attacks.
I decided to just remove the posts where things went wrong. This is a valid discussion but do not make personal attacks.
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What is the legal precedence that allows the government to keep ones property when the original charges are dropped?
The law sez, as I read it, that the NSP IS the Law........ they can revoke, you get a hearing, they give a ruling. That's it. The End. Anybody else read different? It is an Administrative thing, not a Legal procedure.
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The law sez, as I read it, that the NSP IS the Law........ they can revoke, you get a hearing, they give a ruling. That's it. The End. Anybody else read different? It is an Administrative thing, not a Legal procedure.
To be more specific...I was referring to the handgun that the authorities are holding. How is that legal?
Regarding the CHP...I can not find anything in the current law allowing a police agency to revoke a CHP unless they no longer meet the qualifications to be issued a CHP. Even then the revocation requires that the person is prosecuted for no longer meeting the requirements without voluntarily surrendering the CHP. Then there is revocation because you carry in a location you are not supposed to, but doesn't this also require a conviction?
Fly
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Likely he will need to have an Attorney file a "writ of replevin".....
The following info on return of firearms is from OPD:
My weapon is in the possession of the Omaha Police Department, how do I get it back?
There are several steps in order to have a firearm released from the Omaha Police Department Evidence Property Squad.
* You should start by contacting the Firearms squad at 444-6878.
* You may also receive a letter from the Omaha Police Department indicating that the firearm is no longer needed as evidence and you should start the process to retrieve it from the Omaha Police Department. If the firearm is evidence in any matter, it will not be released until such time that it is no longer needed as evidence. The investigative unit will determine this and complete a release form which is then sent to the Evidence Property Squad.
* Once the firearm is not needed as evidence any longer, Nebraska State Statute 29-820 requires that a court order, generally a writ of Replevin is required prior to Omaha Police releasing the firearm. Information packets concerning replevin actions can be obtained from the Douglas County Courts, phone number 444-5425, or you may contact a private attorney for assistance. The court order will need to be presented to the Evidence Property Squad or the investigative unit in charge of the case. The only exception to this rule is when a stolen firearm is recovered and no longer needed as evidence.
* Once the above two items are completed, you should contact the Evidence Property Squad of the Omaha Police Department at 444-5848 to schedule a time to come to the Omaha Police Department Central Headquarters located at 505 S. 15th St to receive your firearm. Bring a picture ID, any permits and/or registrations that you may have as well as the court order. Additionally, it is a good idea to bring a gun case suitable for the firearm that you are picking up.
* Once at the police department, your background will be checked to ensure that you are not a prohibited person and can lawfully possess a firearm. The firearm will also be checked one last time to ensure that it is not reported stolen or needed for evidentiary reasons. Lastly, concealable firearms will be checked to ensure that they are properly registered with the Omaha Police Department and if not, you will be required to register them at that time.
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The law sez, as I read it, that the NSP IS the Law........ they can revoke, you get a hearing, they give a ruling. That's it. The End. Anybody else read different? It is an Administrative thing, not a Legal procedure.
Generally, all "hearings" of this kind are governed by the Administrative Procedure Act. It is a separate state statute that sets the rules for administrative hearings. Those rules include time limits, evidence rules, and other issues. It also sets out the procedure for appealing from an administrative hearing, to the head of the agency, and then to the district court if needed.
It gets complicated, so if a person should make sure the lawyer they hire is familiar with administrative law before hiring them.