NFOA MEMBERS FORUM
General Categories => Laws and Legislation => Topic started by: XDHusker on August 28, 2013, 09:40:52 AM
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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.
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Good luck with your challenge!
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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!
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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.
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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.
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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?
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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.
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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?
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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.
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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.
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*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**** :angry:
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.
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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.
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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.
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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.
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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 ?
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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.
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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.
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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 (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 ?
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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.
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Good luck in your fight!
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This is a case we should be following closely. Politicians can do all kinds of groping and commit every perverted sexual act, aggressively, and still make laws that we all have to live by. Was what you got convicted of worse than some of the things Bill Klinton did? It looks like NSP bureaucrats are looking for excuses to deny 2nd Amendment rights to anyone they can. As I have said before, this is the kind of thing that happens when a right is treated like a privilege.
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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.
I agree 100%. Our legal system is pathetic in this regard (sexual assault). They write these laws so broad and vague that it can be applied to way too many situations where there is no inappropriate acts taking place and on top of that they put these people on a public hate list. It disgusts me as these people are branded for life and face threats, attacks, and public scrutiny for the rest of their life for doing NOTHING wrong.
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Why would they consider someone who is already legally able to obtain a firearm, requesting to be able to legally carry said firearm. I mean if it's a question of this man being a "criminal" and a "danger" to "innocent" people because of his access to a firearm, wouldn't it have made more sense to deny the ability to own one legally in the first place? I mean if hes going to get into an argument and shoot someone who would be deemed "innocent" by a court therefore making it manslaughter at best, murder at worse, he'd already be breaking the law (obviously) so would he really give two ****s about "illegally" carrying a concealed firearm?
Sense this does not make.
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Listened to the discussion at the Supreme Court on this. XD did you forget some words from the charge?
Very interesting discussion and arguments.
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Listened to the discussion at the Supreme Court on this. XD did you forget some words from the charge?
Very interesting discussion and arguments.
Would you be able to elaborate on that? I wasn't able to hear it.
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Would you be able to elaborate on that? I wasn't able to hear it.
http://supremecourt.ne.gov/9827/underwood-v-nebraska-state-patrol (http://supremecourt.ne.gov/9827/underwood-v-nebraska-state-patrol)
The assistant AG seemed very poorly prepared.
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The "of a child" doesn't rattle my cage very much. Treyvon was a little helpless child. Now if they wheel out a 7 year old...
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:redacted:
Good luck in your fight. If you can purchase a weapon, you should be able to carry it. Otherwise, there should be the strict laws on obtaining the purchase permit.
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Any updates on this ?
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Been looking at this, here is a video version of the already posted audio. Not sure where the trial starts there are like 6 cases in the video.
http://supremecourt.ne.gov/10098/video/sc/2013-11-06 (http://supremecourt.ne.gov/10098/video/sc/2013-11-06)
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It sounds like the opinion issued today and was not what the OP had hoped for.
ETA link to opinion:
http://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-207.pdf (http://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-207.pdf)
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Just saw this online....sounds more like we are in a 'may issue' than a 'shall issue' state...
Unrelated to this guys case, I've never been one to backdown...but reading the assult clause where the state can revoke your chp for any version of assult or attempted assult(apparently), I guess if a criminal wants to attack me with bare fists & I want to ever have a concealed weapon ever again....I better error on the side of caution & just let him beat me up....
Before anyone defends it with the "you always have the right to defend yourself".....I personally know people who have been convicted of assult when they were the initial victim...even worse yet, In high school I witnessed a classmate attacked by 2 other teens after school & he got the best of both of them....nothing excessive, just enough to save himself with about 100 witnesses in the school parking lot & he went to court & was convicted of 2nd degree assult.
Bull****....I say we replace these "feel good legislation" liberals that are in control of the judiciary committee with enough legislators to pass a better CHP as well as other bills in the future....
....I know, I make it sound so easy! I feel like I have to rant somewhere & you guys seem to be the most receptive!
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The OP must have sensed the tide would turn against him...he hasn't been on the forum since August, 2013.
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Without being too judgmental I would say the legal fees would have been better spent fighting the original conviction than trying to split hairs over the definition of "violent" in relation to a sexual crime. Just sayin....
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The OP must have sensed the tide would turn against him...he hasn't been on the forum since August, 2013.
Nope, not at all. I've actually been very busy with my business and I haven't had a chance to keep up on my gun forums. :(
For some reason I didn't get the forum update email so I didn't realize anyone had replied since the last time I was here.
I honestly thought the case was a 50/50 shot at best, but I thought it was worth a shot. The law was ambiguous so this was a case of first impression.
I knew I wouldn't get any "emotional sympathy" from anyone but there was a genuine legal question that I wanted to know the answer to.
The weird part is that my crime is not a "crime of violence" from the standpoint of criminal law (state v. palmer test), but the supreme court has ruled that criminal law doesn't apply to the CCW statute. Only the "intent" of the legislature applies. That IMHO is pretty scary.
The part that I find interesting is if you were to read the transcripts from the initial state patrol hearing they specifically cited the criminal statue "state v. palmer" as their determination/test of a crime of violence. They also said it was what they used when I called them before I applied. Yet, when it gets to the supreme court they pretended as though the criminal case law didn't matter. They then cite the evidence of my conviction, but the only evidence was the original police report which had a tremendous amount of false information including components that the witness admitted she lied about on the stand. That's the big flaw with the case based denials if they're only going to use the arrest report.
I'm not sure if this helps or hurts the cause in Nebraska, but it does add some clarity to how the courts are going to interpret the statute.
I think there is one thing we can agree on though. If I am going to commit a "future crime" with my weapon the fact that I have a CCW or not is going to change nothing.
Tony
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Without being too judgmental I would say the legal fees would have been better spent fighting the original conviction than trying to split hairs over the definition of "violent" in relation to a sexual crime. Just sayin....
lol, true that. I wish there were something I could do, but all avenues have been exhausted on that one. A pardon is the only option at this point, but typically you have to wait 10 years to even apply.
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It sounds like the opinion issued today and was not what the OP had hoped for.
ETA link to opinion:
http://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-207.pdf (http://supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s13-207.pdf)
I've fetched and will give this a further reading before posting opinions. Might be a few days. Hopefully not.
Given the result: sorry to hear XDHusker :(
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I've fetched and will give this a further reading before posting opinions. Might be a few days. Hopefully not.
Given the result: sorry to hear XDHusker :(
Thanks
My not so expert legal take is that the real meat that everyone here should be concerned about is this part:
Section 69-2433 lists numerous convictions which serve to disqualify an applicant from receiving a concealed handgun permit. The obvious purpose of § 69-2433 is to prevent people with a demonstrated propensity to commit crimes, including crimes involving acts of violence, from carrying concealed weapons so as to minimize the risk of future gun violence. Regardless of which definition of attempt is applied, Underwood stands convicted of having attempted to commit third degree sexual assault of a child. An attempt to commit a crime is indicative of future behavior, and in the context of § 69-2433(5), we believe the attempt itself is an act of violence. Thus, Underwood has “been convicted of a misdemeanor crime of violence” under § 69-2433(5), as the district court so determined.
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I think there is one thing we can agree on though. If I am going to commit a "future crime" with my weapon the fact that I have a CCW or not is going to change nothing.
Tony
Absolutely! I think the law regarding gun ownership should have the same parameters as the law to carry concealed... I also think that shouldnt be as restrictive as it is, but that's another topic for another day.
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Feel bad for ya. From reading the PDF the conviction seemed based on a sketchy testimony and an emotional verdict.
From reading the paper today you could surmise that if you carry a small amount of drugs along with your gun in any "future crime" the DA will make the gun charge disappear. Although, the legal system's ability to predict indicator of "future crime" is no longer even laughable...it's nearly a crime in and of itself.
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As an initial matter, we observe that there is nothing in the
plain language of § 69-2433 which invites us to examine the particular facts underlying the disqualifying convictions to which reference is made, and we decline to do so. It is the fact of conviction which gives rise to the disqualification, not the factual details of the crime.
This is the "we are not re-trying the original case" - aka - the stuff he brought forth concerning the dubiousness of the original conviction or how things have gone since then is moot to the Court. The Court is only looking at the conviction fact that the conviction occurred.
[5] At issue in this case is the meaning of “crime of vio-lence” as used in § 69-2433(5).
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This statute is found in chapter 69 (“Personal Property”), article 24 (“Guns”), of the Nebraska Revised Statutes. The provisions of § 69-2433 dealing with concealed handgun permits constitute a civil statute. Application of the intricacies of criminal law jurisprudence on which Underwood heavily relies is not well suited to implementation of this civil permit statute.
This is a bit.... I dunno. I take this as the differentiation between civil vs criminal law. For those that don't know, there is a difference on how the two types of law must be read. I'm not going to explain it ATM.
It's a very weird situation because we have civil law referencing criminal law / outcome. How those mingle is odd indeed.
Accordingly, we look to the ele-ments of the statutes underlying the conviction in this case to determine whether Underwood’s misdemeanor conviction for attempted third degree sexual assault of a child was for a crime of violence for purposes of § 69-2433(5).
I find the above to be quite dangerous. Instead of the Court making a definitive ruling on if "attempted" is or is not "a crime of violence" - it ... I dunno. It doesn't really define it but it'll reference it or something.
The hearing officer concluded that the Act is concerned with the future behavior of a holder of a [gun] permit. § 69-2433 specifies past crimes, circum-stances and behaviors deemed relevant to future behavior. One who attempts to commit a crime of violence has manifested the past behavior which is the focus of the act rather than the, at times, fortuitous outcome or success of that behavior
Given that the SCONE decided to opt with civil law instead of criminal law -> we move on to 'intent' -> and that the intent of the law was to prevent future crime.
An attempt to commit a crime is indicative of future behavior, and in the context of § 69-2433(5), we believe the attempt itself is an act of violence. Thus, Underwood has “been convicted of a misde-meanor crime of violence” under § 69-2433(5), as the district court so determined.
So here we have that civil law standards are being used to define a criminal law term. Or, in short, "attempted <possible crime of violence>" can effectively be read as "<crime of violence>" for civil law (but not criminal law).
As an Unfy Opinion (TM):
The Court appears to be very careful to keep it's comments about the matters at hand to only apply to the XDHusker's case in general. As if trying to avoid it's use (as case law) in other cases - all while attempting to reach a desired goal.
The fact that the Court relies on 'intent' as well as 'future' stuff - it makes the opening 'we dont care about stuff that has happened since the original conviction', etc, a bit weird as well. If we're soothesayers, then why not take a look at all the info available to try to get a better prediction of the outcome ?
I'm not offering this as an excuse, but I believe that this kind of also enters the territory of say the TSA and such. I'm sure most folks here don't like the TSA - but if you were the one responsible for removing the TSA and then something bad happened - guess who'd take the popular blame ? If XDHusker does something bad in the future, the Board and Court's wouldn't want it coming back on them. Especially with something like "THINK OF THE CHILDREN!)(@%*!@)%(*".