Concealed Handgun Permit Statutes Clarified in CO Appeals Decision

Well, sort of. The decision clarifies certain parts, but leaves ambiguity in the interpretation of other areas of the law. The recent Colorado Court of appeals decision clarifies due process requirements for concealed handgun permit revocation and issuance. The decision, which was handed down on Dec. 24th, 2009 was a ruling in favor of a concealed weapons permit holder who had his concealed carry permit revoked by the Sheriff of Arapahoe County, J. Grayson Robinson. You can read the decision HERE. Essentially, the Sheriff had stated the reason for revocation was based on the fact that the permit holder had been charged with a crime. The charges which the Sheriff based his decision on were later dropped.

What happened next ended up being the key to the decision. The Sheriff had made an independent determination that the client would be a danger to himself or others should he be permitted to carry a concealed weapon. However, the Sheriff did not notify the petitioner that this was the [new?] basis for his decision to revoke the permit. When the permit holder asked for the Sheriff to review the revocation, the Sheriff held a hearing and subsequently denied the permit, based on the Sheriff’s independent finding that the permit holder would pose a danger to himself or the public.

The Sheriff’s decision was reviewed by the District Court of Arapahoe county, where the court ruled in the Sheriff’s favor. The decision was then appealed to Colorado Court of Appeals, the petitioner’s brief made three arguments: 1) The Sheriff’s procedure did not afford the client appropriate due process (notice and opportunity to be heard) because there was no notice of the independent determination; 2) The evidence presented by the Sheriff was insufficient to show clearly and convincingly (as required by law) that the client would be a danger to himself or others; and 3) because of the unique wording of the law, the District Court should have allowed more hearings on the evidence before handing down its decision.

The Court of Appeals ruled on the due process issue, finding that the Sheriff’s procedure lacked appropriate due process and remanded the case to the Sheriff for a hearing in accordance with the notice requirements.  As the Sheriff’s procedure is quasi-judicial in nature, the permit holder is entitled to notice and opportunity to be heard and such notice should make him aware of the case against him so that he have an opportunity to rebut it. The Court found that the Sheriff’s procedure did not meet these requirements. The Court, therefore, did not have to rule on the other two issues, leaving them unaddressed.

As to the second issue raised in the brief, that the evidence was not clear and convincing. This is essentially arguing “plain error” in the finding of facts by the trial court, an argument which is rarely successful because the Appeals Court will give much deference to the trial courts findings of fact. You can read a summation of most of the ‘evidence’ offered by the Sheriff and ponder whether it is, in your opinion, clear and convincing evidence that such a person would be a danger to themselves or others; the Court of Appeals nicely included that in their opinion to which I linked above.

The third issue was not addressed by the court, again, having already decided the case on due process grounds. The concealed carry statute states that the Sheriff “may” revoke the permit if he has a “reasonable belief” that the holder of the permit would be a danger to himself or others should he have a concealed carry permit. A different section states that upon judicial review such a determination must be proved by clear and convincing evidence. This raises an interesting question.

With two different standards of proof at two different review levels, should there be a different procedure standard for judicial review apart from the “record review” afforded to appeals from most other administrative agency decisions? In this case, the petitioner’s brief argued in the affirmative. During oral arguments the panel of judges was very interested in this distinction and at one point inquired as to what exactly has to be proved by clear and convincing evidence.

Does the Shriff have to prove by clear and convincing evidence that he had a reasonable belief about the danger or does the Sheriff have to show by clear and convincing evidence that such a danger exists? Though the panel seemed interested in this distinction, they did not need to make such a determination. That will be left to later decisions. If the eventual judicial construction favors the former reasoning, then there will be less evidentiary problems at the District level, making it more tantamount to a normal administrative appeal. The case for this has to be weighed against the strong statutory language differentiating the burdens of proof and a legislative declaration that the matter is of constitutional importance; together these give rise to the argument that the legislative intent indicates the latter construction.

This is a big part of the case law that is still pretty open-ended. It will be interesting to watch how it develops in the future with this opinion now published and on point as to the due process issue.

~Eric Wessels

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