Bleiler v. Chief, Dover Police Dep't

• Decision Date: 18 July 2007
• Docket Number: No. 2006–426.,2006–426.
• Citation: 155 N.H. 693,927 A.2d 1216
• Court: New Hampshire Supreme Court
• Parties: Edward J. BLEILER v. CHIEF, DOVER POLICE DEPARTMENT.

155 N.H. 693

927 A.2d 1216

Edward J. BLEILER

v.CHIEF, DOVER POLICE DEPARTMENT.

No. 2006–426.

Supreme Court of New Hampshire.

Argued: May 9, 2007.

Opinion Issued: July 18, 2007.

Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann, on the brief and orally), for the petitioner.

Donahue, Tucker & Ciandella, PLLC, of Portsmouth (Christopher L. Boldt, on the brief and orally), for the respondent.

Kelly A. Ayotte, attorney general (Elizabeth J. Baker, attorney, on the brief and orally), for the State, as amicus curiae.

DALIANIS, J.

The petitioner, Edward J. Bleiler, appeals from the order of the Dover District Court (Weaver, J.) upholding the decision of the respondent, the Chief of the Dover Police Department, to revoke the petitioner's permit to carry a concealed weapon. We affirm.

On March 16, 2006, the petitioner went to the office of the Dover City Attorney to discuss his recently filed lawsuit challenging the contracts of several city employees, including the city attorney. During the conversation, the petitioner removed a loaded pistol from his pocket and placed it on the desk as a "prop" in a story he was telling, which involved threats that allegedly had been made upon him several years ago by organized crime members. The city attorney's paralegal overheard the conversation and described it as "unusual and heated."

After the petitioner left, the city attorney spoke to his paralegal, who felt worried, particularly after learning that the petitioner had had a loaded weapon in the office. The city attorney called the respondent and informed him about the incident. He also told him that the petitioner planned to attend the next city council meeting about the respondent's contract.

On March 31, 2006, the respondent notified the petitioner by letter that he had decided to revoke the petitioner's license to carry a concealed firearm because the petitioner was "not suitable at this time" to carry a concealed weapon. See RSA 159:6–b (2002). The letter informed the petitioner that "[t]he proper handling of firearms mandates that a weapon not be displayed in any manner which may cause concern to another unless there is justification under New Hampshire law" and that the way that the petitioner handled his weapon in the city attorney's office was "unsafe and inappropriate." In addition, the letter explained that the petitioner's license was being revoked because: (1) he had previously made improper comments about using his firearm, such as "we let Smith & Wesson handle it" when referring to disputes, and had displayed his weapon in a manner that would cause concern; (2) a local neighborhood association had hired a police officer to attend its next meeting because of concern about the petitioner's past actions and expectations that he would carry a concealed weapon to the meeting; and (3) the petitioner refused to speak to investigators to explain his actions.

The petitioner appealed the revocation of his license to the district court, which affirmed it following a one and one-half day evidentiary hearing. See RSA 159:6–c (2002). The trial court found that the petitioner's "reckless behavior, his lying to others about that behavior, his misleading statements to the press, his manner and conduct, and his failure to cooperate in the police investigation as to his suitability to retain his license to carry a concealed weapon [constituted] just cause to revoke his license." See RSA 159:6–b. The petitioner does not challenge these factual findings on appeal.

The district court also ruled that the statute under which the petitioner's license had been revoked, RSA 159:6–b, did not impinge upon his right to keep and bear arms guaranteed by the Second Amendment to the Federal Constitution and Part I, Article 2–a of the State Constitution, and was not void for vagueness. This appeal followed.

I

We first address whether to dismiss this appeal as moot. The respondent argues that the appeal is moot because the petitioner's permit to carry a concealed weapon expired as of January 2007, and he has not reapplied for one. The doctrine of mootness is designed to avoid deciding issues that have become academic. Sullivan v. Town of Hampton Bd. of Selectmen, 153 N.H. 690, 692, 917 A.2d 188 (2006). However, the question of mootness is not subject to rigid rules; it is regarded as one of convenience and discretion. Id. A decision upon the merits may be justified where there is a pressing public interest involved, or future litigation may be avoided. Id. We find sufficient public interest in the outcome of this controversy to justify an exception to the doctrine of mootness. Id. at 692–93, 917 A.2d 188.

II

We next address whether to dismiss this appeal because the petitioner waived all of his appeal arguments by not including them as questions in his notice of appeal. See Sup.Ct. R. 16(3)(b). The respondent observes that the questions in the petitioner's notice of appeal concern RSA 159:6–c, not RSA 159:6–b, upon which his brief focuses. We accept the petitioner's assertion that the reference to RSA 159:6–c was a typographical error and conclude that he has not waived his arguments concerning RSA 159:6–b. We agree with the respondent, however, that the petitioner has waived all issues that he raised in his notice of appeal, but did not brief. See In re Estate of King, 149 N.H. 226, 230, 817 A.2d 297 (2003).

III

The petitioner first argues that RSA 159:6–b violates his state constitutional right to substantive due process because it impairs his right under the State Constitution to keep and bear arms. See N.H. CONST. pt. I, arts. 2–a, 12. The constitutionality of a statute is a question of law, which we review de novo. Gonya v. Comm'r, N.H. Ins. Dep't, 153 N.H. 521, 524, 899 A.2d 278 (2006). "In reviewing a statute, we presume it to be constitutional and we will not declare it invalid except upon inescapable grounds." Id. Because the petitioner argues only under the State Constitution, we base our decision upon it alone, citing federal cases for guidance only. Id.

Part I, Article 2–a of the State Constitution provides: "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state." This provision was added to the constitution in 1982.

RSA 159:6–b is part of a statutory scheme that requires individuals to obtain permits to carry loaded, concealed weapons. See RSA 159:4 (2002). RSA 159:4 makes it a crime for an individual to carry a loaded pistol or revolver in any vehicle or "concealed upon his person, except in his dwelling, house or place of business, without a valid license." In addition to exempting law enforcement personnel, court security and members of the armed services, the statutory scheme exempts the regular and ordinary transport of pistols or revolvers as merchandise from this license requirement. See RSA 159:5 (2002). New Hampshire has required some form of license to carry a concealed weapon since at least 1923. See Laws 1923, 118:4.

Licenses are issued pursuant to RSA 159:6 (Supp.2006), which provides:

The selectmen of a town or the mayor or chief of police of a city or some full-time police officer ..., upon application of any resident of such town or city, or the director of state police, ... upon application of a nonresident, shall issue a license to such applicant authorizing the applicant to carry a loaded pistol or revolver ..., if it appears that the applicant has good reason to fear injury to the applicant's person or property or has any proper purpose, and that the applicant is a suitable person to be licensed. Hunting, target shooting, or self-defense shall be considered a proper purpose. The license shall be valid for all allowable purposes regardless of the purpose for which it was originally issued.

Licenses to carry concealed weapons may be "suspended or revoked for just cause, provided written notice of the suspension or revocation and the reason therefore is given to the licensee." RSA 159:6–b, I. If requested, the licensee is entitled to a post-suspension or post-revocation hearing in front of the issuing authority. Id. "Any person whose application for a license to carry a loaded pistol or revolver has been denied ... or whose license to carry a loaded pistol or revolver has been suspended or revoked" may also petition the district court for a hearing upon whether he or she is entitled to a license. RSA 159:6–c. "[T]he statute contemplates that the district court ... hear evidence and make its own determination [upon] whether the petitioner is entitled to a license." Kozerski v. Steere, 121 N.H. 469, 472, 433 A.2d 1244 (1981) (quotation omitted). Additionally, "[a]ny person aggrieved by a violation of the licensing sections of [RSA chapter 159 (2002 & Supp. 2006)] by a licensing entity may petition the superior court of the county in which the alleged violation occurred for injunctive relief." RSA 159:6–e (2002).

The petitioner argues that because the state constitutional right to bear arms is a fundamental right, we must review the constitutionality of RSA 159:6–b under strict scrutiny. The respondent and amicus counter that the right at issue is the right to carry a concealed weapon, which is not a fundamental right, and that, therefore, we may review the statute's constitutionality under rational basis.

We agree with the petitioner that the respondent and amicus define the right at issue too narrowly. We define the question before us as whether revoking the petitioner's license to carry a concealed weapon for just cause impermissibly infringed upon his state constitutional right to bear arms. We assume, without deciding, that the state constitutional right to bear arms is a fundamental right. Because of this assumption, we need not address the petitioner's alternative argument that requiring him to carry a loaded weapon in plain view subjected him to "stigma" and thus deprived him of a constitutionally protected liberty interest. See Short v....