Joe Forbes - Your gun rights Dec 2017

Regular readers of this column know that I am, overall, a supporter of law enforcement.  They have a difficult, stressful job dealing with people in some sort of crisis, and with many who are not happy to see them.  But this installment deals with an unpleasant side of institutional law enforcement, and the anti-Second Amendment bias that has infected some police organizations.

We all know about the anti-gun bias in the laws of states north of us, and the resulting prejudice in law enforcement.  And we are all aware of the misinformation and distortions used by gun-control advocates on a national level, much of which has been very successful in relegating gun owners to pariah status in both the press and national discourse.  After all, in 1992 Congress de-funded the office in the Bureau of Alcohol Tobacco and Firearms which was designated to receive applications from those seeking to recover their firearms rights after certain convictions, and no president of either party has had the political courage to propose re-funding it.  But I am talking about such a bias much closer to home.  Right here in northeastern NC.

A sheriff a few counties west of here routinely denied both pistol permits and concealed carry permits, just because he didn't think the applicant "needed" a weapon.  Of course, there was a much higher success rate for applicants in his circle of friends.  The legislature stepped in and changed the law to require sheriffs to issue the permits if the applicant met the standards of issuance.  G.S. 14-404, 14-415.12.

Another sheriff right here in the First Judicial District publicly posted the names and addresses of concealed carry permit holders.  To add insult to injury, the names were posted on the bulletin board next to the list of the names and addresses of registered sex offenders.  I was so shocked that I took a picture of it with my phone.  Again, the legislature changed the law to make the names and addresses of permit holders non-public. G.S. 14-405, 14-415.17.

The most recent incident of anti-Second Amendment bias occurred just a few days ago.  A man was arrested by a young officer for the offense of carrying a concealed weapon.  (He was wearing a pistol in a holster on his hip.  The officer made a good-faith mistake of the applicable law.)  When the District Attorney learned the facts of the arrest, he rightfully dismissed the charges.  But then the police department refused to return the weapon without a court order.  To get a court order requires filing a written motion, requesting a hearing, notifying the DA and the police of the hearing, presenting a written order to the judge, and then serving the signed order on the police department.  Most people would have great difficulty with such a task without hiring an attorney, so this gun owner is having to spend money to get back something that should never have been taken from him in the first place.

The police department says they need the order because of liability concerns and "procedure", but neither argument holds water.  A police department is a public entity, and is shielded from negligence liability by the doctrine of sovereign immunity.  I've seen it pled as a defense hundreds of times.  As to procedure, why should the procedure be any more arduous than the return of a gun by a pawnbroker that was pledged as collateral on a now paid loan?  The pawnbroker merely runs a background check (required by federal law), and hands the gun to its owner.  The police have easy, quick, free access to the same criminal database for which the pawnbroker pays a fee.  So who came up with the idea that a court order is "required"?

There are serious constitutional issues here.  The Fifth Amendment to the United States Constitution says that no person may be deprived of life, liberty or property without "due process of law".  Article I, Section 19 of the Constitution of North Carolina says that no one may be deprived of these things "except by the law of the land".  Both documents require equal treatment of persons similarly situated under the law.  Police routinely return found or stolen property to its rightful owner upon the signing of a simple receipt.  Why then should we tolerate added requirements and expenditures to recover wrongfully taken property just because it is a firearm?

I have never been a fan of running to the legislature and asking to change a law every time we are inconvenienced, but this situation demands exactly that.  We need a uniform, fair, straightforward state-wide procedure for the return of firearms to their owners if the owners are otherwise eligible to have them under the law.  Otherwise, you are subject to the fickle whims and prejudices of whatever department head has seized your weapon.  Contact your state Representative and Senator and tell them how you feel about this.