Part 2
by the sheriff to process an application,” they may also include other information, such as infor- mation submitted by the appellant and never considered by the sheriff. The additional informa- tion may be sensitive (such as medical or mental health records) or not (such as affidavits vouch- ing for the good character of the applicant). One possible approach would be to have a local rule or standing order that provides for the automatic sealing of information collected by the sheriff in connection with the initial application but allows the decision as to whether to seal any other submissions to be made on a case-by-case basis through motions to seal.22 Other procedures are possible, and judges and clerks may wish to discuss how to handle filings in permit appeals con- sistent with clerks’ obligations to follow the Rules of Recordkeeping promulgated by the Admin- istrative Office of the Courts.23
Some judges decide the appeals in chambers based on the written submissions, while other judges calendar these cases for in-court hearings. Based on the author’s communication with
a number of district court judges, it seems that most judges do not routinely conduct eviden- tiary hearings, though some may allow evidence to be presented in some instances. A cautious middle ground might be to decide whether to calendar a case for an in-court hearing—and if
so, whether to allow the presentation of evidence—after reviewing the written materials. Some cases may be dependent “upon the facts” and may present disputed issues that would be difficult to resolve fairly without a hearing, such as cases that involve multiple witness statements. Cases from other states are divided regarding what kind of hearing is required.24
Judges who choose to hold a hearing often invite an employee of the sheriff to be present to explain the basis for the denial. At hearings that are more formal, more adversarial, and more
22. Courts in North Carolina have the inherent authority to order court files sealed, see Virmani
v. Presbyterian Health Services Corp., 350 N.C. 449 (1999), though they may do so only when necessary to “preserve higher values,” and even then, any sealing order must be narrowly tailored and supported by findings of fact, In re Investigation into Death of Cooper, 200 N.C. App. 180 (2009).
23. See generally G.S. 7A-109(a).
24. Compare In re Dubov, 981 A.2d 87 (N.J. Super. App. Div. 2009) (police chief denied handgun pur- chase permit, apparently because the applicant’s references were not supportive; the applicant appealed to superior court, which held a hearing; “[h]owever, the court did not hear testimony . . . by the appellant, the Chief of Police, police officers who investigated and forwarded reports to the Chief, or other wit- nesses who furnished information that influenced the denial. Instead, the court considered the appeal based solely on documentary evidence, including letters from two of appellant’s references and the report of his psychiatrist. The court also considered factual representations set forth in the County Prosecu- tor’s brief regarding [a reference’s] negative comments about appellant’s fitness to own a gun”; six months later, the judge affirmed the denial, relying in part on a letter the judge had received after the hearing by someone who knew the applicant and did not think he should have a gun; this “did not conform with the requirements of procedural due process” as set forth in Weston v. New Jersey, 286 A.2d 43 (1972); “the informality of a chief of police’s initial consideration of an application for a gun permit requires an evi- dentiary hearing when an applicant appeals a denial”; therefore, the matter was remanded for an eviden- tiary hearing, albeit a somewhat informal one at which the rules of evidence do not apply), with Dlugosz v. Scarano, 681 N.Y.S.2d 120 (N.Y. Supr. Ct. App. Div. 1998) (a county judge revoked a man’s pistol permit based on his “general course of conduct,” including being charged with several crimes; the judge “denied petitioner’s . . . request for a formal hearing, but agreed to review any . . . materials petitioner chose to submit,” and the man submitted a letter explaining his various arrests; on subsequent appeal, the review- ing court stated: “We reject petitioner’s contention that respondent erred in not conducting an eviden- tiary hearing before rendering a determination. It is well settled that a formal hearing is not required prior to the revocation of a pistol permit as long as the licensee is given notice of the charges and has an adequate opportunity to submit proof in response.”).
[emoji2398] 2016 School of Government. The University of North Carolina at Chapel Hill
Gun Permit Appeals 5
evidentiary, this procedure may raise questions about the unauthorized practice of law. It may be better for an attorney to represent the sheriff at such hearings.
The statute does not expressly provide a standard of review, such as abuse of discretion or plain error. The closest it comes is its reference to “the reasonableness of the sheriff’s refusal.” If reversing the sheriff’s denial requires a finding that the sheriff acted unreasonably, the statute may call for some deference to the sheriff’s decision.
According to the statute, the decision by the district court judge “shall be final.” Thus, there is no clear path for a further appeal. A motion for relief from judgment or an extraordinary writ of some kind could potentially provide a vehicle for further review in some cases.
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