Lemus-Frausto v. State ex rel. Div. of Criminal Investigation

• Decision Date: 06 December 2022
• Docket Number: S-22-0083
• Parties: Arsenio LEMUS-FRAUSTO, Appellant (Petitioner), v. STATE of Wyoming, EX REL. DIVISION OF CRIMINAL INVESTIGATION, Appellee (Respondent).
• Court: Wyoming Supreme Court

520 P.3d 1152

Arsenio LEMUS-FRAUSTO, Appellant (Petitioner),

v.STATE of Wyoming, EX REL. DIVISION OF CRIMINAL INVESTIGATION, Appellee (Respondent).

S-22-0083

Supreme Court of Wyoming.

December 6, 2022

Representing Appellant: Donna D. Domonkos, Domonkos Law Office, LLC, Cheyenne, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Kellsie J. Singleton, Senior Assistant Attorney General.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

GRAY, Justice.

[¶1] The Division of Criminal Investigation (DCI) denied Arsenio Lemus-Frausto's (Applicant) application for a concealed firearm permit renewal based on recommendations and information from the Albany County Sheriff (Sheriff) and the City of Laramie Chief of Police (Chief of Police). The district court affirmed DCI's decision. Applicant appeals, and we affirm.

ISSUE

[¶2] Was DCI's denial of Applicant's concealed firearm permit application arbitrary, capricious, and otherwise not in accordance with the law?

FACTS

[¶3] Concealed firearm permits are governed by Wyo. Stat. Ann. § 6-8-104 and are valid for five years. Wyo. Stat. Ann. § 6-8-104(b). Applicant had a concealed firearm permit which expired December 30, 2020. He applied for renewal in January 2021. When an application for a concealed firearm permit is made, the sheriff and the chief of police of the applicant's county of residence are required to submit a written report to DCI containing information pertinent to the issuance of the permit. Those reports should contain facts "which establish reasonable grounds to believe that the applicant ... is reasonably likely to be a danger to himself or others, or to the community at large" because of "the applicant's ... participation in incidents involving a controlled substance, alcohol abuse, violence or threats of violence as these incidents relate to criteria listed in this section." Wyo. Stat. Ann. § 6-8-104(g) (LexisNexis 2021). Applicant lives in Albany County and applied for renewal there. The Albany County Sheriff and the City of Laramie Chief of Police each submitted a report to DCI using a standard report form. The form contained a yes or no checklist for the convenience of the sheriff or chief of police in addressing the criteria found in Wyo. Stat. Ann. § 6-8-104. It also provided a yes or no checkbox for the final recommendation to approve or deny the application. The form included a section for narrative explanation of checked boxes.

[¶4] In his report, the Sheriff checked "yes" when asked if Applicant had a local police record and "yes" on whether Applicant may be a danger to others and to the community at large. The form instructs that a "yes" response requires further explanation in the narrative portion of the report. The Sheriff provided a limited narrative stating that Applicant had an "extensive history of domestic violence, sex crimes, alcohol crimes, [and] property crimes from 1988–present." The Sheriff recommended against the issuance of a concealed firearm permit.

[¶5] On his report, the Chief of Police checked "yes" to whether Applicant had a local police record and "no" on the box asking if Applicant may be a danger to others and the community at large. In his narrative, the Chief of Police noted that Applicant had an "extensive history of domestics," but recommended the issuance of a concealed firearm permit. After receiving these reports, DCI sent an email to the Sheriff. The email pointed out that Applicant had no convictions since his last renewal and sought confirmation that the Sheriff was recommending denial despite the absence of recent convictions. The Sheriff confirmed his recommendation to deny the permit.

[¶6] DCI notified Applicant, by letter, that his renewal application was denied "based upon previous contacts with local law enforcement." The letter informed Applicant that he could submit a request for reconsideration along with "any additional documentation relating to the grounds for denial." Applicant submitted a request for reconsideration, but did not include any additional documentation. After receiving the request, DCI asked the Sheriff for more information. In response, DCI received Laramie Police Department subject information sheets (Information Sheets) which contained a log of the Applicant's contacts with law enforcement. Each contact listed on the log includes the date and category of the contact such as—victim, witness, or suspect. The log shows an extensive history of police contacts. In the five years before the expiration of his prior permit, he had more than fifty separate incidents. Among those were nine instances where he was listed as a suspect in reports of domestic disturbance, burglary, or hit-and-run. DCI wrote to Applicant affirming its previous denial of the permit and stating that it made its decision after "reach[ing] out to the local law enforcement." Applicant appealed to the district court. The district court affirmed, and Applicant appeals.

STANDARD OF REVIEW

[¶7] Judicial review of administrative decisions is governed by Wyo. Stat. Ann. § 16-3-114(c) which provides:

(c) ... the reviewing court shall decide all relevant questions of law, interpret ... statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

...

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2021).

[¶8] Further, we afford no special deference to the district court's decision when we review an agency action, instead reviewing the action as if it came to us directly from the agency. Camacho v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div. , 2019 WY 92, ¶ 17, 448 P.3d 834, 840–41 (Wyo. 2019) ; Griess v. Off. of the Att'y Gen., Div. of Crim. Investigation , 932 P.2d 734, 736 (Wyo. 1997). "Our review must focus on the evidence and consider the reasonableness of the agency's exercise of judgment while determining if the agency committed any errors of law." King v. Wyoming Div. of Crim. Investigation , 2004 WY 52, ¶ 8, 89 P.3d 341, 344 (Wyo. 2004) (quoting State ex rel. Dep't of Transp. v. Legarda , 2003 WY 130, ¶ 10, 77 P.3d 708, 712 (Wyo. 2003) ); Camacho , ¶ 17, 448 P.3d at 840–41.

DISCUSSION

[¶9] Applicant claims DCI's decision was arbitrary and capricious for two reasons. First, he claims DCI's general statement of the basis for denial—"police contacts"—without a description of those contacts precluded a meaningful opportunity to rebut the decision. Second, he argues the decision was based on facts in existence when his previous permit was issued. He argues that a contrary decision based on the same facts has no reasonable basis and is arbitrary and capricious.¹

A. Applicant had a meaningful opportunity to rebut the evidence against him.

[¶10] Wyo. Stat. Ann. § 6-8-104(m) governs the process afforded to a party whose concealed carry permit application is denied.

(m) The division shall, within sixty (60) days after the date of receipt of the items listed in subsection (e)^[2] of this section, either:

(i) Issue the permit; or

(ii) Deny the application based on the ground that the applicant fails to qualify under the criteria listed in this section or upon reasonable grounds for denial specified under subsection (g) of this section. If the division denies the application, it shall notify the applicant in writing, stating the grounds for denial and informing the applicant of a right to submit, within thirty (30) days, any additional documentation relating to the grounds of denial. Upon receiving any additional documentation, the division shall reconsider its decision and inform the applicant within twenty (20) days of the result of the reconsideration. The applicant shall further be informed of the right to seek review of the denial in the district court pursuant to the Wyoming Administrative Procedure Act, W.S. 16-3-101 through 16-3-115.

Wyo. Stat. Ann. § 6-8-104(m) (LexisNexis 2021) (emphasis added).

[¶11] Applicant argues that he had a right to be informed of the evidence against him, and that without this information he could not rebut DCI's decision in a meaningful way. We addressed an applicant's right to the information used by DCI as a basis of its decision in Mecikalski . There, we found that the applicant's implied request for information underlying DCI's decision amounted to a request for discovery. We pointed out that the statute does not provide for discovery or a formal hearing and declined to read those requirements into the statute. Mecikalski v. Off. of Att'y Gen., Div. of Crim. Investigation , 2 P.3d 1039, 1047 (Wyo. 2000) ; see Wyo. Stat. Ann. § 6-8-104(g).³ The statute does not require DCI provide the information requested by Applicant. Here, as in Mecikalski , we "decline to read such requirement[ ] into the statute." Mecikalski, at 1047.

[¶12] In compliance with Wyo. Stat. Ann. § 6-8-104(m)(ii), DCI's initial denial letter informed Applicant of the basis of its denial—"police contacts." The letter notified him, that he had a right to provide "any additional documentation," and that if he did so, DCI was required to reconsider its decision. The statute sets forth the information that is pertinent to the issuance of a concealed carry permit, and Applicant, having been the suspect, witness, or victim, was fully aware of his own police contacts. On receiving DCI's denial of his permit, Applicant requested reconsideration, but provided no additional information to counter any concerns related to the statutory considerations. Applicant is limited to the statutory procedures for reconsideration. The fact that he chose not to provide...