Seeking legal opinions for HCP app - dismissed charges

[Guest headwarp]

I have been sifting through forum posts for the past few hours, and have been googling this ever since I received a request for a court disposition a week ago after applying for my handgun permit.  

 

Let me start out by saying - Until recently I had never wanted to own a firearm, never felt like I had a need to.  That was until I found the front door of my home had been broken into, and in the following weeks other things happened that made me feel the need to be able to defend myself. While this may be irrelevant to my question - I have a physical disability that leaves me at a disadvantage in any type of hand to hand combat type situation, and it really was a step in a different direction for me to be considering the ownership of a firearm.

 

That being said I do have an arrest record with no felonies or violent crimes. No DUI's. No rehab ever. With that in mind when I went to my local dealership and inquired whether they thought it would be an issue on my background check, I even informed my salesman of the charge.  My background check passed immediately and I was able to leave the store with my gun that day.  I've put about 250-300 rounds through it at the range, and have since decided to apply for my handgun permit.  I desire the option to carry should I choose to, and I wanted to take the safety course despite having researched most of that information the week following my purchase.

 

About 2 weeks after applying and being fingerprinted I receive a letter in the mail citing T.C.A. 39-17-1351 requesting a disposition for a case from over 11 years ago involving the possession of marijuana. This was a misdemeanor offense.  I checked at tn.gov and it was listed as "Diversion".  I obtained ceritified copies of the disposition and the affidavit, and have mailed them to the TN Dept of Safety and I am awaiting response.  The "Case dismissed without hearing evidence" box was checked, as well as suspended on good behavior after 11/29 probation. (these aren't the specific wordings on the docket but, it's in the mail or at the Dept of Safety now and I can't quote them directly).

 

Does this give grounds for denial?

 

Chapter 1340-2-4-.02 Definition 10 - The unlawful user of a controlled substance or alcohol means any person convicted of T.C.A. § 39-17-425

relative to the use of controlled substances or T.C.A. § 39-17-310 relative to the use of alcohol.

 

The diversion resulted in the case being dismissed. So I should still be eligible correct?  I've read that a missing disposition might trigger a flag from TICS or it might be NICS.. but it was no issue when purchasing my gun, which is currently locked in a combo safe ready to use should I need it.  (live by myself with no children)

 

I've called my lawyer's office, but here in the Nooga I can't seem to find an attorney that specifically deals with gun rights.  I contacted the lawyer who intitally handled the case in question and I'm waiting for him to return my call so I can get his take on this.  Let me be clear - no need to talk about expungement.  I'm not sure that can happen, not going to clarify why. 

 

Another question I have.. if for some reason I AM denied based on a dismissed charge, which I would not understand based on the requirement of a conviction to fit the bill of what I've read.. is there any chance based on

 

Rule 1340-2-4-.07 (6) 2. If the applicant has been convicted of a felony drug offense involving a Schedule VI

controlled substance, the provisions of this rule shall not apply if such offense occurred

within ten (10) years of the date of application or renewal.

 

That I could have it overturned on these grounds?  It's an 11 year old charge, but it was a misemeanor and not a felony. There was also no conviction, so I have on idea if I could use this rule to my advantage.

 

11 years ago I was young and dumb.  Now I'm 32 years old, I own my own home and afaik I purchased my handgun legally, paid the $10 fee for the BC.  So I was a little surprised to suddenly be questioned when it came to my permit, which asks basically the same questions on the application as my BC application did.

 

Again, I have called my lawyer and am hoping he'll get back to me before I find out whether or not I need to appeal any decisions. .  I may just hire him on retainer if he think's he's up to it.   The Dept. of Safety may have just needed to see the dismissal on the disposition and I may not be facing a denial at all.   But I haven't been able to find very much at all similar to my circumstances on the internet, and I'm never going to get anything done if I keep trying to find something.   So if there are any lawyers on the site who would share their 2 cents I'd appreciate it.  I just mailed the disposition 2 days ago.. so this is mostly just speculation and an attempt at being prepared should the need arise.  For all I know my application will be approved once they get the disposition.  I'm just trying to keep myself from being glued to my computer researching the same stuff I couldn't find yesterday while waiting to consult with my lawyer. 

 

Please and thank you to anybody who might be in the know.

Edited May 28, 2014 by headwarp

[Mike.357]

reads to me you need an expungement.   To get diversion I believe a guilty plea must have been entered.

 

But I am not a lawyer and my advice is worth what you payed.

[Oh Shoot]

.....

The diversion resulted in the case being dismissed. So I should still be eligible correct?  I've read that a missing disposition might trigger a flag from TICS or it might be NICS..

 

I do believe you'll find this to be the case, and it's TN background check causing the hiccup, not federal.

 

To my knowledge, even a drug or drunk conviction will not prevent issuance unless it were a felony. After all, you can still get HCP with multiple drunk driving convictions, just as long as any two of them haven't occurred in last decade. And none of those "definitions" from other statutes you mention are cited in the HCP statute as being relevant.

 

I'm betting that your proof of disposition will clear the way. Keep us informed.

 

- OS

Edited May 28, 2014 by Oh Shoot

[Guest headwarp]

I do believe you'll find this to be the case, and it's TN background check causing the hiccup, not federal.

 

To my knowledge, even a drug or drunk conviction will not prevent issuance unless it were a felony. After all, you can still get HCP with multiple drunk driving convictions, just as long as any two of them haven't occurred in last decade. And none of those "definitions" from other statutes you mention are cited in the HCP statute as being relevant.

 

I'm betting that your proof of disposition will clear the way. Keep us informed.

 

- OS

Thanks for the input OS.  I will definitely keep you updated.  If nothing else just so someone in TN who finds theirselves in my situation will be able to find the information I haven't been able to.
 

And again, to anybody but OS (because he got it)  before we get into the argument of expungement - as I have to talk to my lawyer about that. Let's keep in mind that this question is about a dismissed charge by way of diversion.   To my knowledge this does not count as a conviction. And if a lawyer or lawmaker would care to chime in and correct me I'm more than open to comments in that direction.

Edited May 28, 2014 by headwarp

[Oh Shoot]

Thanks for the input OS.  I will definitely keep you updated.  If nothing else just so someone in TN who finds theirselves in my situation will be able to find the information I haven't been able to.
 

And again, to anybody but OS (because he got it)  before we get into the argument of expungement - as I have to talk to my lawyer about that. Let's keep in mind that this question is about a dismissed charge by way of diversion.   To my knowledge this does not count as a conviction. And if a lawyer or lawmaker would care to chime in and correct me I'm more than open to comments in that direction.

 

My point is that to my knowledge, a non-felony conviction for a drug related offense is not a disqualifying event for obtaining an HCP, not whether yours counts as such or not.

 

There are lots of folks initially denied HCP just because the final disposition record of some charge is not up to snuff some way or other. They'll do that for any charge, whether it was a disqualifying one or not. We know that because any number of them have posted here. Sometimes it affects NICS/TICS check simply to buy a firearm, but more often it seems to crop up with the more detailed check the state runs to issue HCP.

 

- OS

Edited May 28, 2014 by Oh Shoot

[TnShooter83]

More than likely the "Diversion" was not cleared after your 11/29 probation.

I have seen this problem once when a good friend got denied a firearm purchase.

The bad news is that it took about 3 moths to get the problem taken care of once the paper work was sent.

What's even worse is that same friend got a DUI and an now can't get his HCP for 4 more years.

some people never seem to learn I guess?

 

By the way. It takes a lot of courage to admit you've done something wrong. And even more to admit it was a drug charge.

I don't hold a thing against you or think anything less off you.

good to see you are trying to do the right things now.

I hope it all works out for you.

 

And with all the above being said, The absolute WORSE place to ask for any legal advice is the internet.

If you take what you "learn" here to court, you'll lose EVER time.

I'm sure you know this, but I just have to say it.

Edited May 28, 2014 by TnShooter83

[Oh Shoot]

....

What's even worse is that same friend got a DUI and an now can't get his HCP for 4 more years.

 

If that's his only DUI in last 10 years, it's not disqualifying.

 

- OS

[Patton]

If that's his only DUI in last 10 years, it's not disqualifying.

- OS

Exactly!

And to the OP, I have never heard of a diversion being classified as any kind of plea or conviction. Regardless this should be a misdemeanor anyway, even if you plead guilty I don't think it would have excluded you from a HCP.

[DaveTN]

You should be fine with what you already sent. “Diversion” is not a disposition; it’s a path to a disposition, which in your case is “Dismissed”. Certified copies from the clerk of the court should clear it up.

I’m not a lawyer nor do I play one on TV, but I’ve been through the TBI telling me I had a charge without a disposition. I went through being turned down twice in this state before the BATF told me how to fix it.

[Guest headwarp]

I thought I replied not long after TNShooter gave me his response and I want to thank you guys for what reassurances can be made over the internet. TNShooter for giving me an experience I can relate to and DaveTN as well. OS you were very informative as well. Much appreciation for some thoughts to chew on while I wait for the process to happen. I have been googling like a madman since I received the letter last week to no avail.  I just want to understand as much as I can should it come to an appeal. The FFL dealer I did the BC app with didn't seem concerned when I told him of my past. Neither do the majority of responders to my post thus far.

 

Thanks much for the help.. I will update this post in no more than 3 months (should be less by now but I'm giving it some space).  Definitive answers in the time being are still welcomed and I hope this post can save at least one person the time I've spent on this subject.

[wileecoyote]

Contact John Harris of the TFA (Tennessee Firearms Association), he's an expert lawyer on gun rights issue. If he can't help you personally or by a qualified referral, nobody can, and I'd recommend joining TFA or donating in return for his initial advice.

[JohnC]

John Harris is on Facebook. You could probably reach him fast here because he posts a lot on a daily basis.

https://www.facebook.com/johniharris

[Oh Shoot]

He doesn't need a lawyer unless he's denied. And he won't be, assuming those are all the pertinent facts.

 

- OS

[Someotherguy]

My wife just went through this same process over a bad check charge that was put on pre trial diversion over 12 years ago..It clogged up her hcp permit process for nearly 4 months...She had to send in the ORIGINAL court documents(she made copies for her records) to the state showing that the diversion was completed without any further charges..She finally got her permit in the mail this week..Be patient, this will take a while..Wait 90 days from the date you mailed them the documents until you start calling them...

[tnhawk]

Hope this goes well for you.  I wouldn't ask for medical or legal opinions on the internet as the cost could be too high.

[Oh Shoot]

Hope this goes well for you.  I wouldn't ask for medical or legal opinions on the internet as the cost could be too high.

 

He's only applying for a HCP for c'sakes. They asked for additional information, he has supplied it. Whether his situation needs a legal thrust down the road remains to be seen, but procedure appears to be completely routine so far.

 

- OS

Edited May 29, 2014 by Oh Shoot

[Guest theconstitutionrocks]

without digging through all the legal resources and the fact I'm not a lawyer, I'm not qualified to comment on specifically whether you have a case or not. What I WILL say is that those who process the applications have you by the nads either through ignorance of the law, uncertainty on their part, or political agenda. I have seen NUMEROUS cases (not necessarily dealing with firearms) where governmental agencies and the people in charge (to include the so called subject matter experts) "get it wrong". The problem with that is that THOSE are the people that the decision makers listen to.

[Oh Shoot]

without digging through all the legal resources and the fact I'm not a lawyer, I'm not qualified to comment on specifically whether you have a case or not. What I WILL say is that those who process the applications have you by the nads either through ignorance of the law, uncertainty on their part, or political agenda. I have seen NUMEROUS cases (not necessarily dealing with firearms) where governmental agencies and the people in charge (to include the so called subject matter experts) "get it wrong". The problem with that is that THOSE are the people that the decision makers listen to.

 

He's being treated same as everyone else. TNDOS will not issue a permit to anyone when they find record of a charge with no formal final disposition. If same crops up during a 4473 check from NICS or TICS, one will be denied firearm purchase also. Happens routinely, and others here have had same problem either with purchasing firearms or getting HCP, or both.

 

There is no "case" at this time because he hasn't been "wronged" at this time.  If you want to go all Spartacus on something, try the legitimacy of needing a carry permit in the first place under TN's own constitution.

 

- OS

Edited May 30, 2014 by Oh Shoot

[JayC]

Well except TDOS has made that ruling on it's own...  The law doesn't state that you can be denied a HCP because there is an open case against you...  only that you can be denied a permit if you have a disqualifying event.

 

TDOS routinely denies permits without knowing, or even having a reason to suspect an applicant has a disqualifying event, only because they don't want to have to do the leg work required to determine that themselves.  

 

Also, because they want to deny as many permits as possible, because if 99.9% of permits sailed through without issue, then why would we need TDOS's HCP make work project keeping all those union government employees 'working'.

 

TDOS and TICS have an outrageous false positive rate, the vast majority of permits and firearms purchases they deny shouldn't be denied.  Would still have a job if you were wrong 80+% of the time?

 

He's being treated same as everyone else. TNDOS will not issue a permit to anyone when they find record of a charge with no formal final disposition. If same crops up during a 4473 check from NICS or TICS, one will be denied firearm purchase also. Happens routinely, and others here have had same problem either with purchasing firearms or getting HCP, or both.

 

There is no "case" at this time because he hasn't been "wronged" at this time.  If you want to go all Spartacus on something, try the legitimacy of needing a carry permit in the first place under TN's own constitution.

 

- OS

 

[Oh Shoot]

Well except TDOS has made that ruling on it's own...  The law doesn't state that you can be denied a HCP because there is an open case against you...  only that you can be denied a permit if you have a disqualifying event.

.....

 

True enough ... but TICS (or NICS, or both) does the same, just doesn't seem to catch as many of them for simple 4473 check, don't really know the diff in what's searched, though. The somewhat lame excuse I read somewhere was that without a final determination, they can't be sure that the final charge wasn't copped or bumped to another charge that would be disqualifying.

 

They also changed their policy on the variable requirements and price for new residents with out of state permits about a year ago, now all must submit to the whole drill and pay full price. Of course, the original policy was their call only, too.

 

A more blatant disregard for 39-17-1351 though is the shall-issue-within-90 days thang, though it's not too common anymore seems. Personal experience with that myself, with both initial permit, and though renewal is not 90 day specified,  mine took 4 months and that was after calling about it (never did find out what the glitches were in either case). But Lisa told me in person at a gun show about a year ago that they would NOT issue a permit before all background checks came in, regardless of the 90 day provision.

 

You'll notice that there are very few administrative laws on the books that specify any type penalty for anyone when the state disregards them, eh?

 

But anyway, main point here is that the OP isn't being treated any differently than anyone else in the same circumstance. You can bitch about the process, but he isn't a special case for discrimination or whatever. He didn't really need a "legal opinion" just explanation of the status quo procedure.

 

But okay, my "legal opinion" is that the HCP requirement itself is unconstitutional, how's that? :)

 

- OS

Edited May 30, 2014 by Oh Shoot

[94user]

Tennessee has so much firearm freedoms yet so many firearm restrictions it makes my head hurt. 

[Oh Shoot]

Tennessee has so much firearm freedoms yet so many firearm restrictions it makes my head hurt. 

 

That's the diff between states that start with the premise that firearm possession and carry of a loaded firearm is a right but with certain restrictions and TN, which starts with premise that possession of a loaded firearm is illegal, but with certain exceptions and defenses.

 

Looking at recent history of carry around the US, seems it's harder to add an exception than to lift a restriction.

 

- OS

Edited May 31, 2014 by Oh Shoot

[JayC]

You know me I'm not going to disagree with this one bit ;)

 

Only that TDOS HCP / TICS are make work projects that waste time and tax payer money and do little if anything to 'protect' the public, and they have a built in incentive to make the rules as hard as possible even if doing so is unlawful...  because just as you stated there are no criminal sanctions for them violating state law.

 

But okay, my "legal opinion" is that the HCP requirement itself is unconstitutional, how's that? :)

 

- OS

 

[Guest headwarp]

So I got my HCP in the mail today.  Looking at the photo I would've done some double checking myself. (hat hair ftw) I was worried over nothing apparently.  Anyway, figured I would update this post and say that it went faster than I expected it would.  I believe my OP was made the day/night I put the disposition in the mailbox to the Dept. of Safety.  Now I just need to pick out a decent IWB holster. I'm thinking Galco King Tuk or the Crossbreed Supertuck.  But that's another topic.

 

Thanks again for the reassurances people.  Turns out they just needed a disposition showing dismissal after all.

[Oh Shoot]

So I got my HCP in the mail today.  Looking at the photo I would've done some double checking myself. (hat hair ftw) I was worried over nothing apparently.  Anyway, figured I would update this post and say that it went faster than I expected it would.  I believe my OP was made the day/night I put the disposition in the mailbox to the Dept. of Safety.  Now I just need to pick out a decent IWB holster. I'm thinking Galco King Tuk or the Crossbreed Supertuck.  But that's another topic.

 

Thanks again for the reassurances people.  Turns out they just needed a disposition showing dismissal after all.

 

Outstanding, good for you. And see, without a lawyer's fee. ;)

 

- OS