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?”
Weisman Law Firm LLC
25 Central Ave., Waterbury, CT 06702-1202
First – we assume for this question that an appeal of the revocation was requested timely. If it was not, they need to reapply because the revoked permit is closed out after the permit revocation appeal period closes.
Dismissal – In Connecticut there are two ways a criminal case terminates without a trial, a Nolle Prosequi or a Dismissal. A dismissal is a formal termination of the case while the Nolle Prosequi is just the state declining to pursue it further.
A dismissal erases the records after 20 days, so I wait 21 days, then ask for the reinstatement. As the records of whatever the charges were are now no longer accessible by law to anyone (even the police) the revocation is based on nothing. Permit restored because the grounds for the revocation are no longer in existence. Poof!
Nolle prosequi – the records are kept available for 13 months, so, in most cases, because I have a good professional relationship with the firearms unit, I make phone calls, drink coffee and spend time on hold, then ask very nicely to have the permit restored because the detectives can see what happened that led to the revocation.
They usually call me back in a few days after reviewing the records (2 detectives – they are swamped, so I wait and do not piss them off) telling me the permit is restored. Then they ask me to confirm the mailing address of the permit holder. Then I ask the client to confirm their mailing address, wait nine days for the client to respond to multiple emails and phone calls (Yeah, who would respond quickly when the lawyer getting their permit reinstated is trying to contact them…I know, right?) then they get their permit in the mail.
In the rare event that it is not easy, I find out what the detectives are looking for in terms of making them comfortable to reinstate the permit, find out if the client is willing to disclose that information, then if so, provide it. That usually gets the job done.
In the rare event the State Police say no, I either request a hearing or, if it was very bad, have the client wait until the records are erased by statute, then have them apply again. If asked if they were ever arrested, they can answer “no” pursuant to our erasure statute. If asked if they have ever had a permit revoked or suspended, I would have them answer yes, then say “records unavailable.” If they are rejected, request a hearing.
After a not guilty – same as a dismissal. Wait 21 days, call firearms unit. Get permit back. Drink coffee.
Eric W. Schaffer
Schaffer & Black, P.C.
129 West Patrick Street #5, Frederick, MD 21701
Maryland’s permits to carry are administered by the licensing division of the Maryland State Police. Permits are either valid or revoked–there is no middle ground such as a suspension. However, they are not automatically revoked in a use of force incident.
Maryland law specifies the reasons for which an issued permit can be revoked. There are only two: it can be revoked if you are caught carrying a handgun and do not have your permit in your possession or it can be revoked if you no longer meet the qualifications for a permit.
Of relevance here is that in order to qualify for a permit you must not exhibit “a propensity for violence or instability that may reasonably render the person’s possession of a handgun a danger to the person or to another.” (Public Safety 5-306(a)(6)). These are the grounds under which the state police would seek to revoke your permit in a use of force incident. This determination would be made by the state police and usually without the permit holders input or sometimes even knowledge.
If the decision is made to revoke, then the state police has to notify the permit holder in writing and state the reasons the permit was revoked. A person whose permit is revoked has the right to appeal the revocation to the Handgun Permit Review Board. Upon such an appeal they would have the right to have a hearing and be represented by a lawyer. At the hearing you can cross examine the state police’s witnesses, and present your own evidence and witnesses.
At the conclusion, the board, which consists of five members appointed by the governor, can sustain or overturn the state police’s decision. Both sides then have the right to appeal a decision of the board to the circuit court in the county in which the permittee resides. This whole process can be quite lengthy and the law does not specify what happens to your permit during this process.
Once your permit is revoked, it is gone. You would have to go through the whole application process again whether or not you were acquitted of the underlying charges. It is possible you still could be found to have a “propensity for violence or instability” since criminal charges are judged using the beyond a reasonable doubt standard and administrative actions are determined by the lesser preponderance of the evidence standard.
Kingry and Friday
118 W. Adams St., Ste. 320, Jacksonville, FL 32202
If charges are dropped before trial, in your state what is involved in getting the citizen's license to carry reinstated?
It is a fairly simple process in Florida if the license was suspended, not revoked, and has not expired. All that is required is a certified copy of the disposition showing that the state has nolle prossed the charges. Most clients get their license back in a week to ten days.
How (if at all) does that differ from pursuing carry license reinstatement after defending self defense in a trial and being found “Not Guilty?”
The procedure after an acquittal is the same.
Thomas C. Watts III
Thomas C. Watts Law Corporation
8175 Kaiser Blvd, Ste. 100, Anaheim Hills, CA 92808
In California, it is typically an investigatory agency such as the sheriff or the police who are on the arrest and trial. Even though the CCW may be approved by the local constabulary, it is the attorney general’s office who determines the revocation and reinstatement process. That office is not sympathetic to gun owner’s rights. While either scenario should ultimately result in a restoration of rights with time and patience, you have no friends in our capitol. You may anticipate a frustrating process.
Kevin L. Jamison
2614 NE. 56th Terrace, Kansas City, MO 64119
We have not had that problem in my area. Getting the gun back is a perennial problem. I sue under 42 USC Section 1983; we get the gun, damages, punitive damages and attorney fees.
The license is a right under statute. I could go to our small claims court and get an order to return it. In other places a motion in mandamus (to require that a legal responsibility be done). No money.
I don’t see any difference in going to a “not guilty” verdict.
A big “Thank You!” to our affiliated attorneys for their contributions to this interesting and educational discussion! Please return next month when we have a new Question of the Month for discussion.
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