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).
...
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!)(@%*!@)%(*".
