firearms

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In July, 1999, I attempted to purchase a shotgun at a retail gun shop in Rapid City, SD (my principal shopping area). The rest of this page chronicles what has happened since.
---Bob Newland
email me

The following editorial appeared on the FORUM page of the

Rapid City Journal, August 7, 1999

Instant Check? Protection From Criminals?

by Bob Newland

On a recent Friday -- the weekend of Rochford Days -- I tried to buy a shotgun at a local gunshop. I wanted to waste my annual quota of 12-gauge birdshot while powdering my usual 3-out-of-60 clay pigeons at the Rochford Fire Department's trapshoot the next day.

Possessing a current South Dakota concealed-carry permit, I thought I could buy a shotgun and walk out with it. Wrong. The gunshop had to submit my name for an "instant" check. Well, the folks at the "instant" check number were busy, so I had to wait until Saturday morning to get my gun. Surprise! My name came up on a "no-buy" list.

The gunshop gave me a sheet providing the procedure for filing an appeal to the FBI. After borrowing a shotgun and actually going 4-for-60, I filed the appeal. By law, the FBI was bound to reply within five days after receipt of my appeal.

The FBI's National Instant Criminal Background Check System (NICS) waited six days to send me a letter saying that "either you or an individual with a similar name and/or similar descriptive features has been matched with one or more of the following prohibitive criteria:

"A. convicted of or under indictment for a crime punishable by imprisonment for more than one year;

"B. a fugitive from justice;

"C. unlawful user and/or an addict of any controlled substance;

"D. adjudicated mental defective;

"E. illegal alien;

"F. dishonorably discharged from armed services;

"G. renouncer of citizenship;

"H. subject of a protective order;

"I. convicted of a crime of domestic violence;

"J. previously denied the right to purchase a firearm based on federal law; and/or

"K. a juvenile."

The FBI's response further offered me options. If I believe myself not to be the person they describe, I can send my fingerprints -- having taken the fingerprint card it supplied to a local law enforcement agency, which would then ink me and print me and send the card off -- to the NICS. The FBI would then determine whether I was the one they were looking for. If I wasn't that person, they would send the fingerprint card back. Right.

On the other hand, if I thought I was the guy they were looking for, I could go turn myself in. I fit none of the criteria, but that's not even the point.

I now have a shotgun, having purchased one the way a criminal would. I bought one from someone who accepted my offer to purchase it.

The "instant" check system exposed itself for what it is. It accomplished nothing of value. However, my experience points up several items of ludicrousness about it.

First, if I were a criminal, this episode would simply tell me they were looking for me, and that they now had my home address. And, if I am a criminal, why have they not come and arrested me?

Second, since I fit none of their criteria for denying me the right to purchase a firearm, their system is obviously flawed. Seriously.

Third, it denied a legitimate business the opportunity to make an honest profit, while denying me the convenience of making a purchase at the time and place of my first choice.

Fourth, I got a gun anyway. Granted, the "instant" check denial provided me with a "cooling off" period, during which I had time to reflect on whether I actually wanted to kill clay pigeons while supporting the Rochford Fire Department. But, had those skeet been attacking me on Friday afternoon, I could have been seriously injured or killed while waiting for somebody who has no idea who I am to make a decision as to whether I had a right to defend myself against them.

Fifth, I still have a valid concealed-carry permit. I can own guns. I can pack them around under my jacket. I simply can't purchase them from retail stores.

I think I'm gonna write Senators Tim [Johnson] and Tom [Daschle] and tell them how much I appreciate their looking out for me while casting their votes in favor of these stupid and counterproductive gun laws. Can anyone have any doubt about their ultimate agenda?

Since July 1999, I tried one more time to purchase a firearm from a retail outlet, and was again rebuffed.

Then, in January 2003, I attempted to renew my South Dakota concealed-carry permit, according to South Dakota Codified Law...

So. Dak. Codified Law (SDCL) § 23-7-7

Permit to carry concealed pistol -- Statewide validity -- Background investigation.

A permit to carry a concealed pistol shall be issued to any person by the sheriff of the county in which the applicant resides. The permit shall be valid throughout the state and shall be issued pursuant to § 23-7-7.1. Prior to issuing the permit, the sheriff shall execute a background investigation, including a criminal history check, of every applicant for the purposes of verifying the qualifications of the applicant pursuant to the requirements of § 23-7-7.1. For the purposes of this section, a background investigation is defined as a computer check of available on-line records.
So. Dak. Codified Law (SDCL) § 23-7-7.1

Requirements for issuance of temporary permit -- Time -- Appeal of denial.

A temporary permit to carry a concealed pistol shall be issued within five days of application to a person if the applicant:

(1) Is eighteen years of age or older;

(2) Has never pled guilty to, nolo contendere to, or been convicted of a felony or a crime of violence;

(3) Is not habitually in an intoxicated or drugged condition;

(4) Has no history of violence;

(5) Has not been found in the previous ten years to be a "danger to others" or a "danger to self" as defined in § 27A-1-1 or is not currently adjudged mentally incompetent;

(6) Has been a resident of the county or municipality where the application is being made for at least thirty days;

(7) Has had no violations of chapter 23-7, 22-14, or 22-42 constituting a felony or misdemeanor in the five years preceding the date of application or is not currently charged under indictment or information for such an offense;

(8) Is a citizen of the United States; and

(9) Is not a fugitive from justice.

A person denied a permit may appeal to the circuit court pursuant to chapter 1-26.

...The Custer Co. (SD) Sheriff denied my application due to an incorrect notation on my FBI-NICS (Federal Bureau of Investigation-National Index of Criminal Background Checks System) file that I had been convicted of a felony. The sheriff told me that the specific allegation referred to a 1990 SD Sales Tax conviction.

That conviction was for a misdemeanor violation. I have documentation of that fact. I have never been convicted of a felony. Therefore, I sent the documentation to the sheriff. He still refused to issue the concealed-carry permit. I then appealed to the circuit court, as provided by law.

Here is the brief I filed on March 25, 2003 in support of my appeal:

IN CIRCUIT COURT

SEVENTH JUDICIAL CIRCUIT

COUNTY OF CUSTER

STATE OF SOUTH DAKOTA

Robert J. Newland,

Appellant

v

Custer County Sheriff,

Appellee

Case No. CIV 03-0026

APPEAL OF DENIAL

OF PERMIT TO CARRY

A CONCEALED PISTOL

CAUSE OF ACTION

Comes now your appellant, Robert J. Newland, to appeal the denial of a PERMIT TO CARRY A CONCEALED PISTOL by the Custer County Sheriff.

JURISDICTION

This court has jurisdiction pursuant to SDCL § 23-7-7.1, which states that a person denied a permit may appeal to the circuit court.

This appeal is timely. It is being filed within 30 days of the denial of the permit by the Custer County Sheriff, which appellant received in writing on March 22, 2003.

PROCEDURAL HISTORY

I (appellant) applied to the Custer County Sheriff pursuant to SDCL § 23-7-7 for a permit to carry a concealed pistol on March 15, 2003. On March 20, 2003, the Custer County Sheriff refunded my application fee, and sent me a letter, saying I was not eligible for a concealed pistol permit due to my having been convicted of a felony.

Having applied for a concealed pistol permit in January, 2003, and having been denied at that time (I inadvertently let the 30-day limit for an appeal expire, which is why I applied again on March 15, 2003), and having discussed this matter with Sheriff Hespen prior to my re-application for a permit on March 15, 2003, I knew that the alleged felony conviction in question was a sales tax matter from 1990 in Lawrence County.

I included, with my application on March 15, 2003, a copy of a JUDGMENT OF CONVICTION for a violation of SDCL § 10-45-48.1(2), a misdemeanor, on 19 November 1990. Nevertheless, the sheriff again denied my application.

I understand that, under SDCL § 23-7-7, the sheriff is permitted to use a computer check of on-line records as part of a background investigation. Custer County Sheriff Hespen told me that the national database he uses for such background checks lists me as having been convicted of a felony in Lawrence County in 1990.

I believe that the copy of the JUDGEMENT OF CONVICTION in my possession, and the copy sent Sheriff Hespen, is evidence that I am not a convicted felon, at least in that instance. That instance comprises, apparently, the only allegation that I have been convicted of a felony.

I AM QUALIFIED FOR A PERMIT TO CARRY A CONCEALED PISTOL

I MEET ALL THE CRITERIA LISTED IN SDCL § 23-7-7.1, in that I:

1. Am older than eighteen (18) years of age;

2. Have never pled guilty to, nolo contendere to, nor been convicted of a felony or a crime of violence; I have attached documentation of the JUDGMENT OF CONVICTION for a misdemeanor, dated 19 November 1990, in Lawrence County;

3. Am not habitually in an intoxicated or drugged condition;

4. Have no history of violence;

5. Have not been found, ever, to be a "danger to others" or a "danger to self" as defined in § 27A-1-1 nor am I currently adjudged mentally incompetent;

6. Have been a resident of the county or municipality where the application is being made for at least thirty days;

7. Have had no violations of chapter 23-7, 22-14, or 22-42 constituting a felony or misdemeanor in the five years preceding the date of application nor am I currently charged under indictment or information for such an offense;

8. Am a citizen of the United States; and

9. Am not a fugitive from justice.

Having met all the criteria for issuance of a permit to carry a concealed pistol, I am eligible for, and the Sheriff must issue, the permit.

PRAYER FOR RELIEF

I hereby pray that this court:

1. Reverse the decision of the Custer County Sheriff denying me a permit to carry a concealed pistol;

2. Order the Custer County Sheriff to issue said permit to me; and

3. Take such action as is within the Court's power to correct the erroneous information about me which apparently exists on whatever database Sheriff Hespen used to conduct his background investigation.

Dated this 25th day of March, 2003

____________________________________________

Robert J. Newland (pro se)

HC 89 Box 184-A

Hermosa SD 57744

Here is the reply brief filed by the Custer Co. State's Attorney on May 28, 2003:
Please note that Vander Heide makes some misstatements of fact, and wild leaps of logic. See below.



My exceptions to Vander Heide's assertions are:

1. Vander Heide says I was convicted on prior "occasions" of possessing a loaded firearm while intoxicated.

In fact, I was convicted once of that charge. This is a law which makes no sense, and which is enforced sporadically, at best (usually only when a cop is stacking charges for purposes of future plea bargaining). Also, it is entirely irrelevant to the denial or granting of my concealed-carry permit, since the conviction is more than 5 years old.

2. The entire argument about the sheriff being held liable should I "misuse" the concealed-carry permit is ludicrous. I shall ask Mr. Vander Heide to exemplify "misuse" of a concealed-carry permit in court on July 17, 2003.


Being pretty sure now that the same federal (pronounced "incompetent") agency was responsible for both my permit denial and the denial of my rights to purchase a firearm, I managed to find a phone number at the website: http://www.fbi.gov/hq/cjisd/nics/index.htm

Federal Bureau of Investigation
NICS Operations Center
P.O. 4278
Clarksburg, WV 26302-4278
(304) 625-2750
email: a_nics@leo.gov



I happened to get the right agency the first try, at the above address. The woman who answered the phone confirmed that this was the agency which had denied by gun purchases and which had given the sheriff the [erroneous] information. She gave me a case number and told me whom I should write.

I sent the following letter:

Bob Newland 605-255-4032

HC 89 Box 184-A

Hermosa SD 57744 newland@rapidcity.com

19 June 2003

FBI-NICS Operations Center

Appeals Services Unit

Module A

PO Box 4278

Clarksburg WV 36302

Re: Denial of retail purchase of firearm &endash; 08XY-6LL

Denial of concealed carry permit &endash; Custer Co., SD

I called NICS today and was given the number 08XY-6LL, referring, I think, to a denial of purchase of a firearm in Hot Springs SD.

Currently, I'm appealing a denial of a concealed carry permit in Custer County, SD. The Custer Co. Sheriff tells me that the Interstate Identity Index tells him that I was convicted of a sales tax charge &endash; a felony &endash; in Lawrence County, SD, in 1990.

Based on that information, I have obtained the court records of that conviction, and I have enclosed them. I was not convicted of a felony.

The Facts

On 26 October, 1990, I was convicted of a misdemeanor, "Failure to Pay South Dakota Sales Tax": in violation of South Dakota Codified Law § 10-45-48.1 (2), one count.

I have enclosed a copy of Lawrence County's records with regard to this event.

SDCL § 10-45-48.1 (2) is a misdemeanor by definition. I have enclosed the text of

§ 10-45-48.1 (1) through § 10-45-48.1 (9), including § 10-45-48.1 (2), showing its classification as a misdemeanor.

Subsequently, I have been denied retail purchase of firearms and a permit to carry a concealed pistol, based, I believe, on erroneous classification of this conviction as a felony.

My Proposal

I propose that NICS correct the classification of this conviction to reflect that it is a misdemeanor, and that NICS send me confirmation of that action.

Thank you for your attention to this matter.

Bob Newland

On June 30, 2003, I received this letter from the FBI:



The hearing on my concealed-carry permit was held at the Custer County Courthouse on 17 July 2003 at 11:15 a.m.

17 July 2003 at 11:15 a.m.

This is what I said to the court:

South Dakota Codified Law, in Section 23-7-7.1, sets forth nine criteria which must be met by an applicant for a permit to carry a concealed pistol before the issuing authority, in this case Sheriff Hespen, may issue the permit.

South Dakota law, also in Section 23-7-7.1, further states that the permit "shall be issued" if these criteria are met.

Mr. Vander Heide, counsel for the appellee in this action, correctly states that the issuing sheriff must execute a background and criminal history check of applicants for concealed pistol permits, and that SDCL defines a background investigation as "a computer check of available on-line records". He is also correct in his assertions as to what the FBI's NCIC report says about my having been convicted of a felony.

Sheriff Hespen was justified in denying my initial application for a concealed-carry permit.

However, for Mr. Vander Heide to interpret SDCL 23-7-7.1 as prohibiting further background investigation, even after being provided irrefutable evidence that the NCIC report contains erroneous information, is to strain both the law and common sense past the breaking point.

The current wordings of South Dakota concealed-carry permit criteria and issuing procedure were instituted within the past few years to concur with federal requirements for grant and aid qualifications. They were designed, I believe, to give the benefit of the doubt to the applicant. In other words, "if the applicant's federal record shows no violations which are in contradiction to any of the permit criteria, then that's good enough for us".

However, it would be ludicrous to expect a sheriff to issue a permit to an applicant whose federal NCIC record is clean, but whom the sheriff knows has committed an armed robbery.

Conversely, it is ludicrous to assume that the South Dakota legislature intended that a sheriff, who knows that the NCIC's only specific allegation of a disqualifying criminal conviction on the part of a concealed-carry permit applicant is false, may not consider evidence which shows that the NCIC report is erroneous.

That would be roughly analogous to maintaining that a person convicted of murder must remain in prison even though the person he was supposed to have murdered has turned up alive and well.

To this point in this action, I'm aware of only one statutory barrier to my being issued a concealed-carry permit -- the allegation of a felony conviction in Lawrence County, South Dakota. I have provided court records and SDCL text which demonstrates that conviction to be actually a misdemeanor.

Aside from the remarks disposed of so far, Mr. Vander Heide provides nothing of further value in the argument in his brief.

The fact that I was convicted of "possessing a firearm while intoxicated" more than five years ago makes that fact legally irrelevant in the discussion over whether I qualify for a concealed-carry permit. Further, Mr. Vander Heide knows as well as the rest of us that that particular law is of no use to us socially and is enforced whimsically.

And finally, I would hope that Mr. Vander Heide could elaborate on how a concealed-carry permit holder could "misuse" a permit. One could perhaps use the laminated permit card to jimmy a lock or jab someone in the eye. But how could one "misuse" the fact that he has a concealed-carry permit? One would assume that any act which would possibly fall under someone's characterization of permit misuse would also fall under the purvey of much more serious criminal sanctions, an act which most likely would have been committed regardless of the perpetrator's posession of a concealed pistol permit.

I take exception to both the sheriff's and the state's attorney's intransigence on this matter in the face of glaring evidence that they are relying on erroneous information, and to the state's attorney's obfuscation of fact in order to maintain an otherwise untenable position.

Conclusion:

Given that I meet all the criteria listed in SDCL § 23-7-7.1, the court has no choice but to direct Sheriff Hespen to issue my permit to carry a concealed pistol.

I also ask the court to refund the $45.00 appeal fee I paid to bring this litigation to this point, since Sheriff Hespen had all the facts and evidence necessary to reverse his original decision to deny me the permit at his disposal prior to my filing the appeal.

I also ask the court to direct Sheriff Hespen to contact the FBI and ask it to correct the erroneous information listed on my NCIC report.

Tim Vander Heide, Custer Co. States Attorney, said, in effect:

"The sheriff is barred by law from using anything other than the FBI-NICS report. Newland must succeed in getting the FBI to correct the report. Innocence of the accusation is irrelevant."

I asked Vander Heide whether he would argue to keep a person in prison for murder after having been presented evidence of the person's guilt: "Would you say, 'A jury convicted him. We're barred by law from overturning a jury's verdict.'?" Vander Heide didn't answer.

I also asked him again to explain how a person could "misuse" a concealed-carry permit. He responded, "I don't have to answer your questions." Judge Trimble said, "I'll answer it," then he gave this explanation.

"Suppose a guy goes into a bar packing a gun. He waves his concealed-carry permit around and says, 'This gives me the right to carry in here.' That would be misuse of the permit."

Newland note (unspoken in court): Fact is, it is not a crime to wave a piece of paper around and say, "This is a license to carry a gun in a bar." It is, however, a crime to carry a gun in a bar in South Dakota, regardless of whether or not you have a concealed carry permit. I fail to see how making a false claim while committing a crime which stands as a crime regardless of the false claim can be construed to be "misuse of a concealed carry permit". But then, I'm not a lawyer.

Judge Trimble then told Vander Heide to follow up on the chain of paper in my criminal record to find out where the erroneous information that I had been convicted of a felony began to appear. "I'll expect a report in 30 days."

Vander Heide said, "You want me to do that?"

Judge Trimble said, "Yeah, you."

24 July 2003

During the past three years, I have attempted several times to get information from the Lawrence County Clerk of Courts concerning my records. While they sent me copies of my records (at a price), they wouldn't discuss them with me. They said, "You'll have to have your lawyer get that information."

After the hearing on July 17, I went back to the Lawrence Co. Clerk and made mention of Judge Trimble's order to Vander Heide. Suddenly, they became willing to give me information. I learned that the SD Division of Criminal Investigation (DCI) obtained all court records online from the individual counties' records, and that the FBI-NICS folks use the records of various State Police agencies.

I called the Division of Criminal Investigation and explained what I had learned. They asked me to fax the records of the case in question (the sales tax misdemeanor conviction). I called back a few days later. "We can't get too specific," the woman said, "but if you want a gun permit, why don't you re-apply. I don't see any disqualifying events in your record."

That meant, to me, that she had corrected the record.

Knowing of the gross incompetence and corrupt nature of the SD DCI, it doesn't surprise me at all they made a mistake.

As of today, July 24, 2003, that's where things stand.

I called Vander Heide's office and left a message about what I had found. Will post again when anything new happens.




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