North Carolina sheriff sued (again) over concealed carry permit delays

North Carolina sheriff sued (again) over concealed carry permit delays
AP Photo/Rich Pedroncelli

And not for the first time either. The new lawsuit filed by Grassroots NC, Gun Owners of America, and three residents of Mecklenburg County is actually the second piece of litigation brought against Mecklenburg County Sheriff Garry McFadden, with the first lawsuit filed last year over lengthy delays in processing both concealed carry applications and the permit-to-purchase applications that every would-be handgun buyer in the state must first obtain before they can lawfully buy a pistol.

In June of this year, Grassroots NC and GOA won a preliminary injunction and obtained a consent order requiring McFadden to process purchase permit applications within 14 days, as required under North Carolina law, and to process concealed carry applications within the 45 days allotted to sheriffs under state statute.

Since then, however, gun owners and Second Amendment activists say McFadden has continued to slow walk the issuance of concealed carry licenses by “exploiting a loophole” in North Carolina state law dealing with mental health records.

► Continuing delays of more than 1 year for concealed handgun permit applications despite state law requiring permits required to be issued in 45 days.

► No delays in NC’s other 99 counties: Reports CHP application delays are now coming only from Mecklenburg County, not from any of the state’s other 99 counties.

► McFadden is exploiting a loophole in NC law:

    • § 14-415.12 requires CHP applicants not “suffer from a physical or mental infirmity that prevents the safe handling of a handgun.”

 

    • § 14-415.15 (a) says: “within 45 days after receipt of the items listed in G.S. 14-415.13 from an applicant, and receipt of the required records concerning the mental health or capacity of the applicant, the sheriff shall either issue or deny the permit.”

 

    • Although the statute does not stipulate what inquiries are required or permitted, normal practice is for sheriffs to submit requests to, at most, local mental health facilities.

 

    • Unlike other sheriffs, McFadden is flooding the Veterans’ Administration (VA) with record requests not only for military veterans, but for ALL concealed handgun permit applicants, including those who never served in the military, creating a backlog at the VA which is, in any case, under no obligation to provide background check services for non-veterans.

 

  • McFadden is misinterpreting § 14-415.15 (a) by falsely claiming that he has 45 days AFTER receipt of mental health records to process applications even though the statute clearly says 45 days AND receipt of mental health records.

As Grassroots NC notes, even if applicants don’t indicate that they’ve ever served in the military, McFadden is still requesting all mental health records from the VA; records that simply don’t exist.

In late October, Charlotte news station WCNC reported that there was a backlog of 7,600 concealed carry applications in Mecklenburg County, with a wait time of at least eight months. And McFadden’s office agrees that the holdup is due to the backlog of mental health record requests from the VA. What the sheriff hasn’t been able to explain is why his office is the only one in North Carolina that’s seeing this slowdown.

There are currently about 7,600 concealed handgun permit applications pending in Mecklenburg county. All applications received after February 3rd are waiting for mental health releases from one or more facilities, according to the sheriff’s department.

The estimated wait time for an application’s competition depends on how quickly the hospitals return the releases.

In Mecklenburg county, they send the applications to five different mental health facilities.” Irwin Carmichael, a concealed carry permit instructor and former Mecklenburg County sheriff, explained. “So that is the delay in the process right now

Carmichael said informed his class upfront there is about an eight-to-nine-month wait at this time.

“It is the staffing with the VA that is the issue,” said Carmichael. “At least that is what they are stating. It is not on the sheriff’s office. It is on getting those mental health checks.

Despite the frustrations he is hearing from people, Carmichael said the mental health checks are necessary.

“I hate that it is taking this long but I’m glad that the process is there because all of the boxes are being checked and we are making sure that person is qualified to have a firearm and to have a concealed carry weapon,” Carmichael said.

No offense to Carmichael here, but if it really was staffing with the VA causing the delays, we’d expect to see similar backlogs in other North Carolina counties. According to Grassroots NC and GOA, that’s simply not the case. In fact, the groups argue in their lawsuit that the records requests to the VA are redundant, since under the NICS Improvement Act of 2007 the VA is required to report all mental health disqualifications directly to the National Instant Check System, which the sheriffs in North Carolina use for their background checks on would-be permit holders.

Grassroots NC president Paul Valone says the sheriff “seems to think he can play a game of “Whac-A-Mole’ in which we win an injunction and consent order requiring him to issue handgun permits in compliance with North Carolina law, only to have him exploit yet another abusive interpretation of the law,” but adds that McFadden is mistaken.

“As we have said previously,” Valone declared, “Grass Roots North Carolina and Gun Owners of America will file as many lawsuits as necessary to ensure that this sheriff and other sheriffs comply with the law. With our legal hand strengthened by the recent Supreme Court decision in NY State Rifle & Pistol Assoc. v. Bruen, we have a strong position to win this suit, meaning McFadden’s obstructionism serves only to unfairly burden the taxpayers of Mecklenburg County with the costs of pointless litigation.”

Well, that and depriving people of their fundamental right to bear arms in self-defense by keeping them in a holding pattern far beyond the 45 days allotted to McFadden’s office under North Carolina state law. Thanks to this latest lawsuit, however, hope is on the horizon for the thousands of North Carolinians whose rights are being held hostage by the Mecklenburg County sheriff. We’ll be following this case as it makes its way through the courts, and will hopefully have some good news to report about an injunction in the very near future.