Attorney Question of the Month
This discussion with our Network affiliated attorneys is based on a hypothetical scenario: An armed citizen is arrested after use of force in self defense and his or her state-issued license to carry a concealed handgun is revoked. We asked our Affiliated Attorneys to comment on the following:
1) If charges are dropped before trial, in your state what is involved in getting the citizen's license to carry reinstated?
2) How (if at all) does that differ from pursuing carry license reinstatement after defending self defense in a trial and being found “Not Guilty?”
James D. “Mitch” Vilos
Attorney at Law, P.C.
PO Box 1148, Centerville, Utah 84014
In Utah it should be as easy as making sure the Bureau of Criminal Identification (BCI) is aware of the dismissal or acquittal. The defendant should get a certified copy of the order dismissing the case from the court clerk and send it to BCI at:
Bureau of Criminal Identification (BCI)
PO Box 148280, Salt Lake City, Utah 84114-8280
or take it to BCI at:
Bureau of Criminal Identification (BCI)
3888 West 5400 South, Taylorville, Utah 84129
John Monroe Law, PC
9640 Coleman Road, Roswell, GA 30075
In my state (Georgia), the license is not revocable until a person is no longer eligible. Theoretically, having felony proceedings pending against a person would make the person ineligible for a license and therefore subject to revocation, but I have never heard of that happening.
Still, in a high-profile case, I could see it being considered or even happening. Just being arrested would not be sufficient. Actually legal proceedings would have to be commenced. If they were commenced, and the license was revoked, there would be due process considerations of revoking a license before conviction. There is no particular provision for reinstatement after revocation, but state law requires a hearing before revocation.
If there were a revocation, the normal appellate process would apply. In the second example, where a person was acquitted, if the license had not been revoked upon charging, state law would prevent the revocation at that point.
110 N. 3rd St., Hamilton, OH 45011
In Ohio if a CCW licensee is found not guilty or charges are dismissed the suspension of the license is automatically ended. See R. C. 2923.128. Also if the original charges are reduced or amended to an offense that does not require a license suspension, the suspension would also be terminated.
Thomas Cena, Jr.
3929 Bridgeport Way W., Ste. 304,
University Place, WA 98466
I have not found in the Constitution an explicit reference to the “Presumption of Innocence,” but I believe that concept goes to the question asked. The presumption (found as far back as in Roman law) appears to be based on the concept that, in a criminal case, the burden of proof rests solely on the accuser; the prosecution.
In the instances of a matter dropped before trial or acquittal after trial, the right to carry either constitutionally or by state issued license would not have been removed. This is because the revocation of that right should be based only on a conviction, either by verdict after trial or plea of guilty.
After conviction each state may have a procedure, set out in the statutes, for reinstatement of the right to possess and carry a firearm. There is, however, a complication to this. There seems to be no viable federal mechanism (there is apparently, but it has never been funded) to restore firearm rights. This creates a situation that, even if a person is restored to his/her firearm rights at the state level, there is another hurdle to navigate for the person to be removed from the NICS data base in order to lawfully purchase a firearm.
Benjamin M. Blatt
PO Box 221, South Bend, IN 46601
Indiana Code 35-47-2-5(b) covers reinstatement of a license and directs the State Police Superintendent to reinstate upon acquittal or upon the dropping of the specific charge which triggered the license suspension/revocation. To get reinstated, a person needs to contact the Indiana State Police Firearms Licensing Unit (and yes, it’s a stupid name because they provide handgun carry licenses, they don’t actually license firearms) and provide them with stamped copies of the acquittal order or the dismissal order. In some Indiana counties, the Court or prosecutor may take care of this, upon request. A person should not assume they are reinstated, however, until they have their license back in hand, as the Superintendent may have other grounds supporting a suspension or revocation.
Kelly & Chapman
PO Box 168, Portland, ME 04101
In Maine, things depend a lot on why they were dropped. There is a Maine case dealing with a dropped case not invalidating consideration of the underlying conduct. See Hider v. Chief of Police, 628 A.2d 158 (Me. 1993).
My impression: if case is dropped due to exoneration, and the revocation has not been processed, one could win an appeal. However:
“The issuing authority shall revoke a permit on the basis of one or more of the following determinations:
… C. The permit holder becomes ineligible to possess a permit under this chapter. Ineligibility is determined on the basis of the criteria contained in section 2003 [“good moral character” as determined by government documents]
“Except as specified in this subsection, no person, otherwise eligible, who has had a permit revoked, is eligible for reapplication until the expiration of 5 years from the date of revocation.”
Thus, in Maine, you might well get found “not guilty” or have the case dismissed, and still end up with a five year disqualification based on underlying conduct. It depends.
You don’t get a complete wash after five years, though it is close. If you remain a “prohibited person” under either Maine or US law, you are still out of luck. Maine law is slightly more inclusive in terms of who is a “prohibited person.” We include some juvenile crimes. Also, our definition of a disqualifying offense is one day more severe than the feds’.
All that assumes that nothing else pops up within the five year period.
Gregory J. Miller
Law Offices of Gregory J Miller
P O Box 680, West Redding, CT 06896
In CT if the permit was surrendered to DESPP (State Police) we typically email the detective in charge and the permit is returned or re-issued. Either local PD or State Police will be holding the firearm and typically I need a copy of the Nolle from the DA to get the pistol back. On occasion I have needed a court order to return the firearm.
In 99% of cases no shots are fired, firearm was just displayed. And in those cases sometimes I can work with the police department and no charges are filed, but be careful as they have up to a year to file charges.
Jerold E. Levine
5 Sunrise Plaza, Ste. 102
Valley Stream, NY 11580
New York is not a “shall issue” state, but a “may issue” state, and pistol licensing is discretionary with the licensing officer. Among other things, licensees must have good moral character and there must not be any good cause for license denial. With carry licenses there is yet another level of discretion: “proper cause” for issuance.
While Heller and McDonald have turned this permission system into a right, at least regarding home possession, the extent to which the right can be restricted is an open question in New York, and our traditional case law gives licensing officers “virtually unbridled” discretion. That will remain the rule until a court finds otherwise.
Persons with a completely clean record usually qualify for a home possession or business possession license, but with carry license applications the “proper cause” standard commonly is used to find insufficient need for issuance. This is the case in downstate counties such as New York County, Nassau, Suffolk and Westchester. Upstate counties are more lenient, and carry licenses frequently are issued, but even some upstate locations have become restrictive, such as the City of Buffalo.
The same discretionary standards for license issuance are applied to suspension and revocation, and so the return of the licensee’s pistol license after a successful criminal case will not hinge entirely, or even at all, on whether the charges were dropped or if there was an acquittal; though an acquittal might be considered more favorably by the licensing officer. What is most important is the local regulations applied to licensees and the attitude of the local licensing officer (e.g., did the licensee timely inform the licensing officer of the arrest; did the licensee escalate the underlying incident, thus increasing the likelihood that force would be necessary; did the licensee cooperate fully with police; etc.).
The matters into which the licensing officer can inquire about the licensee’s character almost are endless, with the good cause bases similarly vast. And since various New York jurisdictions have licensing officers with anti-gun mentalities, it is no surprise that even small things have been used to revoke licenses (e.g.; lapse of auto insurance coverage...strictly speaking, a violation of state insurance regulations, and thus proof of bad character).
A not too infrequent situation is where the criminal lawyer advises his client to make no statement to the licensing officer, as it might be used against the client in the criminal case. The client follows this advice, wins the criminal case, and then finds himself with a revoked pistol license for failure to cooperate with the licensing officer. There is no constitutional right against self-incrimination in a licensing proceeding; only against self-incrimination in a criminal proceeding.
Even if the licensee is acquitted, and even if he fully cooperated with police in the criminal and licensing cases, the mere fact that an allegation was made against him can, and very often is, used to revoke the license. The standard of proof used by licensing officers is not the criminal court standard, but a very relaxed standard of “reasonableness.” If the licensing officer reasonably believes the evidence shows that the licensee did something wrong, that is more than enough to revoke the license; and it is astonishing how unreasonable reasonable can be, and will be permitted by the courts. This also would be true even without a criminal case. Accusations alone, without arrest, very often result in license revocation (e.g.; domestic disturbances where police are called, but no arrest is made and no order of protection is issued).
License suspension/revocation proceedings vary by jurisdiction. Some licensing officers hold formal administrative hearings, while others make decisions upon written submissions from the licensee or his attorney. Where the licensing officer is a judge, as often is the case, there may be a court hearing. Whatever the format, if a revocation occurs it can be challenged in court, but in most cases the revocation is upheld.
So in New York, once the police become involved in anything concerning the licensee, and regardless of whether there is an arrest, the administrative machine has been awakened, a license suspension almost certainly will occur, and the return or revocation of the license essentially will rest upon the administrative discretion of the licensing officer. Welcome to New York, Comrades!
A big “Thank You!” to our affiliated attorneys for their contributions to this interesting and educational discussion! Please return next month for additional responses to this Question of the Month.
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