Sheriffs deny permit applications, only to have them overturned.
Updated: February 18, 2013 - 1:10 PM
Minnesotans with histories of assaults, weapons violations, domestic violence and narcotics offenses are regularly denied a permit to carry a loaded firearm because sheriffs consider them a threat to themselves or the public.
Despite their backgrounds, many of them appeal. And win.
Since 2003, at least 299 people deemed too dangerous or otherwise unfit for a gun-carry permit were able to obtain them on appeal to the sheriff or a judge, a Star Tribune analysis shows.
In a system that prosecutors say is heavily weighted in favor of permit seekers, it's nearly impossible to find out why the denials are overturned. State law protects the privacy of gun owners, prohibiting law enforcement from releasing any data that could identify them -- even if they have criminal records.
In Hennepin County, one applicant had a felony conviction for manufacturing and dealing crack cocaine. Another in Ramsey County was suspected of shooting at a law enforcement officer. An Olmsted County applicant was a confirmed gang member. Each got a permit on appeal.
Most of the permits are granted upon a second review by the sheriff, but some are decided by judges in closed hearings. Law enforcement agencies that lose an appeal are required by state law to pay for the applicants' legal fees.
"This is shocking," Rep. Michael Paymar, DFL-St. Paul, said after reviewing records the Star Tribune compiled. Paymar, who is leading the Minnesota House's efforts to control gun violence, said the appeals records provide another reason to re-evaluate the state's 10-year-old law that allows permits to carry.
Under Minnesota's "shall issue" law, passed in 2003 as part of a national campaign by the National Rifle Association, applicants are presumed to have a right to carry a weapon unless sheriffs can document disqualifying reasons. Since then, about 96 percent of gun-carry permit applications have been approved.
Of those who are denied as potentially dangerous, only about one-third appeal. But those appeals succeed about half the time.
James Franklin, executive director of the Minnesota Sheriffs' Association, said reversals can be a frustration to sheriffs.
"There are cases where a judge has determined that a party will have a permit. Do we as law enforcement always agree with that? We may not. That's why we denied it in the first place," Franklin said. "Are we concerned? Sometimes you hold your breath. Other times you find that nothing happened."
But Joseph Olson, a Hamline law professor and longtime leader of the Minnesota Gun Owners Civil Rights Alliance, said he's confident that sheriffs and judges are making decisions that protect the public. He said the law rightly requires sheriffs to justify their denials.
"The sheriff can't do that on the basis of a gut reaction, or 50-year-old information," Olson said.
In 84 of the cases where an appeal was successful since 2003, the sheriff's reasoning for denying a permit involved arrests; 64 cases included assaults; 27 included drug use or sales; 22 were because the applicant had attempted suicide or had a history of mental health problems; 17 included a felony charge or conviction, and four included gang involvement.
Some of those reasons for denial would appear sufficient to bar an applicant from even possessing a gun, let alone carrying it loaded in public.
No names, no explanations
The data on the appeals come from annual gun permit reports by the Minnesota Bureau of Criminal Apprehension. But the names of those involved, like those of all applicants for permits, are private under the law, and in most cases no explanation is given for the reversal.
In Anoka County, 11 permit applicants have successfully appealed their denials, even though they were denied for such reasons having "several assault- related convictions," "an assaultive background/behavior," "domestic related-disorderly conduct" and "criminal history of the past several years."
"If we feel a person meets the criteria under the law for a denial, we will deny them," said Cmdr. Paul Sommer, who handles Anoka's permit applications. "But if the system defeats us, and we have to issue the permit, then that's what we have to do."
Being arrested multiple times might not bar someone from obtaining a permit if those arrests never resulted in felony convictions. A domestic assault conviction brings a lifetime ban on possessing a firearm, but suspects often plead to lesser charges and remain eligible, Sommer said.
When Marvis Peters of Minneapolis applied for a permit in May 2010, the Hennepin County Sheriff's Office denied his application because of a 1994 incident where he was charged with two counts of fifth-degree assault, including intent to cause fear of immediate bodily harm, court records show.
Peters said the sheriff didn't know at that time that he had pleaded guilty only to disorderly conduct, and the other charges were dismissed. "I appealed and I got it," he said.
Other applicants who won their permit appeals in Hennepin County in 2011 were initially denied for these reasons: "arrests for criminal sexual conduct, narcotics violations, forgery and false information to police," "long arrest record from Chicago. ... Also, an incident of threatening a police officer," and "arrests for theft, domestic assault, DWI and narcotics offenses."
Senior Assistant Hennepin County Attorney Toni Beitz said the reason for some reversals is that the carry-permit law puts a high burden on a sheriff to prove that someone shouldn't be issued a permit. Under the carry-permit statute, for example, criminal allegations that are not investigated and documented aren't grounds for denial.
"The statute is very limited as to what evidence the sheriff can look at. He's got a very short period of time, and there's only a very narrow room for him to use discretion," Beitz said. "That was the big shift when it used to be in the hands of chiefs of police. They had a lot of discretion to look at maybe whatever they wanted to look at."
In Ramsey County, sheriff's spokesman Randy Gustafson acknowledged that some applicants who appeared to have criminal backgrounds were getting permits. But he said in many cases, the applicants were able to show that things that popped up on background checks did not disqualify them under the law.
Among Ramsey County's successful appeals were an applicant who had several orders for protection against him in the county since 1994, another with an unspecified felony conviction in the county, and one arrested in the county for shooting at "law enforcement" -- though that person was never charged.
In Olmsted County, three people have been able to successfully appeal since 2003, including one who was denied "due to documented past gang activity." Officials said they were forbidden from discussing the case, but pointed to a law saying suspected gang members can argue that they're no longer involved in a gang, or that it's a case of mistaken identity.
The secrecy in the law extends to permit appeals decided by a judge. State law requires records of those hearings be sealed. Beitz said she was aware of no other adult court process in the state that had such restrictions on public access.
The cost of fighting appeals in Anoka County has gone as high as $3,000, said Sommer of the Anoka sheriff's office. That's one factor in the decision on permits, said Wright County Sheriff Joe Hagerty.
"If I'm going to deny it, especially if I don't have a statute behind me, I'm gonna make sure that I've got enough documentation to do it," he said.
Wright County had four successful appeals before Hagerty took office in 2011, including one where the applicant was a "confirmed Minnesota criminal gang member." Records show Hagerty hasn't denied any permits on the grounds that the applicant was potentially dangerous. Hagerty said he's unaware of any permit-holder in his county who has been charged with a crime.
In one of the cases in Anoka County, Sommer said the permit-holder went on to commit a felony gun crime, but said due to state law he was prohibited from saying anything else about it, out of concern for identifying him. "But he didn't hurt anybody," he said. The felon also lost his permit.
Similarly, Minneapolis police have cited the law in refusing to say whether the man who killed six people and took his own life at Accent Signage in September was a permit-holder.
Minnesota's permit-holders have committed at least 1,159 crimes since 2003, including 114 where a gun was used, according to the BCA. It's not known how many of them got their permits via appeals.
Olson of the gun-rights group said statistics show that permit-holders, while not perfect, have committed crimes less frequently than the population as a whole.
But Paymar said the histories of people winning appeals demands an explanation.
"At some point the Legislature is going to have to revisit the whole conceal-carry law and have a thorough discussion about what's working and what isn't ... because clearly there's something broken here," he said.
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