Van Der Hule v. Mukasey
| Decision Date | 27 January 2009 |
| Docket Number | No. OP 08-0576.,OP 08-0576. |
| Citation | 349 Mont. 88,2009 MT 20,217 P.3d 1019 |
| Parties | Frank S. VAN DER HULE, Plaintiff, v. Michael B. MUKASEY, Attorney General of the United States of America, Defendant. |
| Court | Montana Supreme Court |
For Plaintiff: Quentin M. Rhoades, Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana.
For Defendant: Mark B. Stern, Christopher J. Walker, Department of Justice, Washington, D.C., William W. Mercer, U.S. Attorney, George F. Darragh, Jr., Assistant U.S. Attorney, Great Falls, Montana.
¶ 1 The United States District Court for the District of Montana has certified the following question to this Court pursuant to M.R.App. P. 15:
Does § 45-8-321, MCA, prohibit a county sheriff from issuing a concealed weapon permit to a person described in subsection (1)(c) of the statute, or does a sheriff have discretion to issue a permit to a person falling within that category?
We accepted the certified question by order dated October 10, 2007. For the reasons set forth below, we conclude § 45-8-321, MCA, prohibits a county sheriff from issuing a concealed weapon permit to a person described in subsection (1)(c) of the statute.
¶ 2 On September 20, 1983, Frank S. Van der hule pled guilty in Montana state court to one count of sexual assault in violation of § 45-5-502(1) and (3), MCA, and four counts of sexual intercourse without consent in violation of § 45-5-503(1) and (3), MCA. Under Montana law, both crimes are felonies punishable by imprisonment for a term of not less than four years. Van der hule was sentenced to twenty-five years' imprisonment. He was paroled in 1993 and, on September 30, 1999, he received a "Final Discharge" notice from the Montana Board of Pardons and Parole stating his "civil rights are restored."
¶ 3 On July 28, 2003, Van der hule attempted to purchase a firearm from a federal firearms licensee in Montana. The licensee collected identifying information from Van der hule and submitted it to the National Instant Criminal Background Check System (NICS) as required by the Brady Handgun Violence Prevention Act of 1993. The FBI, which manages the NICS, performed a background check which revealed Van der hule's Montana state convictions for sexual assault and sexual intercourse without consent. Based on those convictions, the FBI determined Van der hule was prohibited from obtaining a concealed weapon permit under § 45-8-321(1)(c), MCA. Relying on Caron v. United States, 524 U.S. 308, 310, 118 S.Ct. 2007, 2010, 141 L.Ed.2d 303 (1998), the FBI further determined that, under federal law, Montana's restriction on Van der hule's right to obtain a concealed weapon permit prevents him from possessing any type of firearm. The FBI refused to approve Van der hule's purchase of a firearm, and Van der hule appealed that decision. On November 19, 2003, the FBI issued a final decision denying Van der hule approval to purchase a firearm.
¶ 4 Van der hule then filed an action in the United States District Court for the District of Montana, Missoula Division, seeking declaratory relief and challenging the FBI's denial of approval of his purchase of a firearm. That court granted summary judgment in favor of the defendant Attorney General of the United States on all issues except the question it has certified to us. The federal court further determined no state appellate decision clearly controls the question it has certified, which is determinative of the issue remaining before that court.
¶ 5 Does § 45-8-321, MCA, prohibit a county sheriff from issuing a concealed weapon permit to a person described in subsection (1)(c) of the statute, or does a sheriff have discretion to issue a permit to a person falling within that category?
¶ 6 Before we begin our discussion of the certified question, we note that, in his brief to this Court, Van der hule argues that the term "convicted" in § 45-8-321, MCA, does not apply to persons whose sentences have expired and whose civil rights have been restored, and that the concealed weapon statute, if interpreted as argued by the Attorney General, violates the provision of Montana Constitution Article II, Section 28, that "[f]ull rights are restored by termination of state supervision for any offense against the state." The federal district court has rejected both of these arguments. The court granted summary judgment in favor of the Attorney General on all issues except the question it has certified to this Court. It has not asked us to address these issues, nor have we agreed to expand the scope of the certified question. As a result, we decline to consider the additional arguments made by Van der hule in his brief to this Court.
¶ 7 Montana's law concerning the issuance of permits to carry a concealed weapon is codified at § 45-8-321, MCA. At subsection (1), that statute provides "[a] county sheriff shall, within 60 days after the filing of an application, issue a permit to carry a concealed weapon to the applicant." The statute qualifies that directive, however, with several requirements and restrictions. An applicant for a concealed weapon permit must be a United States citizen, must have been a state resident for at least six months, must be at least eighteen years old, and must present some form of state-issued photo identification card. Section 45-8-321(1), MCA.
¶ 8 In the part of the statute at issue here, § 45-8-321(1), MCA, further provides that, except as provided in subsection (2), a concealed weapon permit "may not be denied an applicant unless" the applicant:
(a) is ineligible under Montana or federal law to own, possess, or receive a firearm;
(b) has been charged and is awaiting judgment in any state of a state or federal crime that is punishable by incarceration for 1 year or more;
(c) has been convicted in any state or federal court of a crime punishable by more than 1 year of incarceration or, regardless of the sentence that may be imposed, a crime that includes as an element of the crime an act, attempted act, or threat of intentional homicide, violence, bodily or serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent;
(d) has been convicted under 45-8-327 or 45-8-328, unless the applicant has been pardoned or 5 years have elapsed since the date of the conviction;
(e) has a warrant of any state or the federal government out for the applicant's arrest;
(f) has been adjudicated in a criminal or civil proceeding in any state or federal court to be an unlawful user of an intoxicating substance and is under a court order of imprisonment or other incarceration, probation, suspended or deferred imposition of sentence, treatment or education, or other conditions of release or is otherwise under state supervision;
(g) has been adjudicated in a criminal or civil proceeding in any state or federal court to be mentally ill, mentally defective, or mentally disabled and is still subject to a disposition order of that court; or
(h) was dishonorably discharged from the United States armed forces.
Then, in subsection (2) of the statute, a sheriff is granted discretion to deny a concealed weapon permit to an applicant based on "reasonable cause" to believe the applicant is "mentally ill, mentally defective, or mentally disabled or otherwise may be a threat to the peace and good order of the community." Section 45-8-321(2), MCA. Finally, an applicant "must, as a condition to issuance of the permit, be required by the sheriff to demonstrate familiarity with a firearm." Section 45-8-321(3), MCA.
¶ 9 As indicated above, the FBI relied on § 45-8-321(1)(c), MCA, in concluding a Montana county sheriff may not issue Van der hule a concealed weapon permit, because Van der hule's prior criminal convictions were punishable by more than one year in prison and included sexual...
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