                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0875
                               Filed June 10, 2015

JEFF LEBECK,
     Plaintiff-Appellant,

vs.

MARION COUNTY SHERIFF,
     Defendant-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Marion County, Gregory A. Hulse,

Judge.



       A Marion County resident, who was denied a permit to carry a concealed

weapon by the sheriff because of a misdemeanor assault conviction, appeals a

judicial review order affirming an administrative law decision. AFFIRMED.



       John H. Judisch of Stuyvesant, Benton & Judisch, Carlisle, for appellant.

       Ed Bull, County Attorney, and Benjamin P. Hayek, Assistant County

Attorney, for appellee.



       Heard by Tabor, P.J., and Bower and McDonald, JJ.
                                              2



TABOR, P.J.

       This is an administrative appeal from a sheriff’s denial of a concealed

weapon permit based on the applicant’s conviction for “a misdemeanor crime of

domestic violence” under Iowa Code section 724.26(2)(c) (2013). Marion County

resident Jeff Lebeck argues the county did not present clear and convincing

evidence before the administrative law judge (ALJ) to show the sheriff had

probable cause to reject Lebeck’s permit application.         See Iowa Code §

724.21A(5). Lebeck also alleges a violation of his due process rights.

       Lebeck’s appeal is governed by Iowa Code section 17A.19(10), the

judicial review provisions of the Iowa Administrative Procedures Act.           Id.

§ 724.21A(4). He would be entitled to relief if the ALJ’s decision was based on

an unconstitutional provision of law or was not supported by substantial

evidence. See id. § 17A.19(10)(a), (f). Because Lebeck has not established he

is entitled to relief under either of those grounds, we affirm the ALJ decision and

the district court’s judicial review order.

I.     Background facts and proceedings

       On February 25, 2013, Lebeck applied to the Marion County Sheriff for a

nonprofessional permit to carry weapons under Iowa Code sections 724.7 and

724.11.   Chief Deputy Troy Fisher processed the application for the sheriff’s

office. The deputy complied with section 724.10(2) by performing a background

check on Lebeck. Fisher discovered Lebeck had been charged with domestic

abuse simple assault under section 708.2A in September 2010. In November
                                         3



2010, Lebeck pleaded guilty to simple misdemeanor assault, without the

domestic element, in violation of section 708.2(6).

      Upon finding the assault conviction on Lebeck’s record, Fisher sought out

the court file to see if Lebeck’s offense qualified as a “misdemeanor crime of

domestic violence” under section 724.26(2)(c). Fisher read the complaint and

affidavit filed by a Knoxville police officer.    The complaint began: “I, the

undersigned, being duly sworn, state that the following facts known by me or told

to me by other reliable persons form the basis for my belief the Defendant

committed this crime.” The complaint then recited the following facts:

              On 09-06-10 at app. 0909 hrs Knoxville officers responded
      to a domestic situation at 706 N. 2nd St. Knoxville, lowa. Upon
      arrival Officers spoke to a Robyn Neer and a Jeffery Lebeck. Ms.
      Neer advised she has resided with Mr. Lebeck for app. 1 1/2 years
      and that the relationship between her and him had ended several
      months prior but they were still living together. Ms. Neer stated she
      had purchased a home and had plans to move to that home. Ms.
      Neer stated she left for the weekend of 09-03-10 and did not
      answer any phone calls from Mr. Lebeck. Ms. Neer stated upon
      her return home to 706 N. 2nd, prior to Officers arrival, she found
      most of her personal items in the garage and some in the home yet.
      Ms. Neer stated she tried to enter the home to see what was left in
      the home, when Mr. Lebeck became physical and threw her into
      the door and grabbed her by her upper arms and forced her out the
      door.
              Mr. Lebeck told responding Officers that he had to physically
      block her from entering the home. Officers requested a statement
      from Mr. Lebeck. Mr Lebeck turned in a statement on 09-13-10
      stating he met Ms. Neer at the front door and was exiting the home
      and attempting to shut the door behind himself when she bumped
      into him.
              Officers were investigating the assault over the next few
      days and were called by Ms. Neer to show Officers small bruise
      marks on her upper arms from where she said Mr. Lebeck grabbed
      her.
                                        4



      The cohabitation between Lebeck and the assault victim asserted in the

sworn statement by a fellow peace officer satisfied Chief Deputy Fisher that

Lebeck’s offense disqualified him from possessing a firearm under section

724.26(2). On March 1, 2013, Fisher wrote to Lebeck informing him that his

application for a concealed weapons permit was denied.              Fisher’s letter

explained: “Your criminal background check indicates that in 2010 you were

charged with domestic abuse assault—Iowa Code 708.A(2)(A) that was pled

down to a simple assault—Iowa Code 708.2(6) case # SMAC013820.                  This

conviction disqualifies you from obtaining a permit to carry under Iowa law.”

      Following the procedure in Iowa Code section 724.21A(1), Lebeck sought

review of the sheriff’s denial before an ALJ in the department of inspections and

appeals. In a March 22, 2013 letter, Lebeck’s counsel argued the sheriff’s denial

of a permit to carry a concealed weapon was “in error, contrary to law and a

violation of Mr. Lebeck’s constitutional rights under the Due Process Clauses of

the 5th and 14th Amendments of the United States Constitution.”          The letter

asserted the sheriff reached an unsupported finding that Lebeck was subject to

the provisions of section 724.26(2). The letter contended Lebeck was denied

due process by the deputy’s reliance on the criminal complaint to conclude the

victim of Lebeck’s assault was someone with whom he had a domestic

relationship. The letter also noted the plea and sentencing order did not show

Lebeck was represented by counsel or waived that right.

      The Marion County Attorney filed a response on May 7, 2013, contending

Lebeck’s   2010    simple   misdemeanor      assault   conviction   constituted   a
                                         5



“misdemeanor crime of domestic violence” which disqualified him from obtaining

a concealed weapons permit under section 724.8(4).            The county attorney

argued that under section 724.21A(5), the deputy needed only probable cause—

not proof beyond a reasonable doubt—to believe Lebeck had a domestic

relationship with his assault victim.    The county attorney further argued the

deputy developed probable cause by reviewing the sworn complaint from the

court file.

        An ALJ held a contested case hearing on May 8, 2013. The only witness

was Chief Deputy Fisher. Based on the deputy’s testimony, the ALJ concluded

the sheriff proved by clear and convincing evidence that Lebeck was ineligible to

carry weapons because he was subject to the provisions of section 724.26.

        Lebeck sought judicial review under section 724.21A(4).          His petition

raised the following points: (1) his application was denied without proof beyond a

reasonable doubt that he committed domestic abuse assault; (2) the sheriff was

not authorized to impute facts from the preliminary complaint; and (3) as a result

of the sheriff’s conduct, Lebeck was deprived of his constitutional right to bear

arms, his right to due process, and his right to equal protection.

        The district court held a hearing on March 14, 2014. In its April 28, 2014

ruling, the district court characterized Lebeck’s argument as follows:

        Petitioner claims that the County failed to prove or establish three
        things: that a domestic relationship existed between him and the
        victim beyond reasonable doubt; that there was any evidence that
        the Petitioner was represented by counsel or knowingly waived his
        right to counsel; or that there was any proof that the Petitioner
        waived his right to a trial by jury on the underlying offense of
        domestic abuse which was amended to simple assault.
                                         6



After conducting a thorough and careful analysis of those claims, the district court

concluded “there was substantial evidence to support the ALJ’s findings of fact,

she did not misinterpret the law and her application of the law was not wholly

unreasonable or irrational.” The court also rejected Lebeck’s substantive and

procedural due process claims.

       Lebeck now appeals the district court’s judicial review order.

II.    Scope and Standards of Review

       This appeal is governed by chapter 17A. Iowa Code § 724.21A(4). In

contested cases involving permits to carry weapons, the burden is on the sheriff

to show by clear and convincing evidence that the written statement of reasons

constituted probable cause to deny an application. Id. § 724.21A(5). Clear and

convincing evidence means “there is no serious or substantial doubt about the

correctness of the conclusion drawn from the evidence.” 481 Iowa Admin. Code

11.13(724). “Probable cause” to deny an initial application for a permit to carry

weapons “means a reasonable ground exists for supposing that the basis for the

denial . . . is well-founded.” 481 Iowa Admin. Code 11.12(724).

       We examine a district court decision reviewing agency action to decide if

the court correctly applied the law. See Chartis Ins. v. Iowa Ins. Comm’r, 831

N.W.2d 119, 123 (Iowa 2013). We apply the standards in section 17A.19(10) to

decide if we would reach the same result as the district court, which may grant

relief if the agency action has prejudiced the substantial rights of the petitioner

and the agency action is flawed under one of the criteria mentioned in section 10,

subsections (a) through (n). Id.
                                            7



       Lebeck does not cite chapter 17A or specify what paragraph under section

17A.19(10) he is challenging on appeal. In setting out the standard of review,

Lebeck asserts only that constitutional issues are reviewed de novo. The county

does not address the standard of review in its brief.

       A   district   court   may   grant   relief   when   the   agency   action   is

“[u]nconstitutional on its face or as applied” or is “based upon a provision of law

that is unconstitutional on its face or as applied.” Iowa Code § 17A.19(10)(a).

We assume this subsection is one basis for Lebeck’s challenge. We review

agency action involving constitutional issues de novo. Chiodo v. Section 43.23

Panel, 846 N.W.2d 845, 848 (Iowa 2014).

       To the extent Lebeck is challenging the ALJ’s factual determinations, we

review the ruling for substantial evidence based on the record reviewed as a

whole. See Iowa Code § 17A.19(10)(f). Substantial evidence is:

       the quantity and quality of evidence that would be deemed
       sufficient by a neutral, detached, and reasonable person, to
       establish the fact at issue when the consequences resulting from
       the establishment of that fact are understood to be serious and of
       great importance.

Id. § 17A.19(10)(f)(1); see Travelers Indem. Co. v. Comm’r. of Ins. of State, 767

N.W.2d 646, 651 (Iowa 2009).

III.   Statutes determining eligibility for weapons permit

       To carry a concealed weapon in Iowa, a person must have a permit. Iowa

Code §§ 724.4(4)(i), 724.5. Professional permits are issued for people who carry

weapons as part of their employment, such as private investigators, security

guards, and peace officers. Id. § 724.6. Nonprofessional permits may be sought
                                             8



by any person who is not disqualified under section 724.8 1 and who satisfies

training requirements under section 724.9. Id. § 724.7. A nonprofessional permit

seeker must apply to the sheriff of the county where the person resides. Id. §

724.11(1).

       Upon receiving the application, the sheriff shall conduct a criminal

background check concerning the applicant. Id. § 724.10(1). If the background

check reveals the applicant is subject to the provisions of section 724.26,2 the

person is disqualified from receiving a permit. Id. § 724.8(4). But if the applicant

is not disqualified under any of the provisions in section 724.8 and has satisfied

certain training requirements, the sheriff must issue the permit.              Iowa Code

§ 724.7.

       Within thirty days of receiving the application, the sheriff must approve or

deny it. Id. § 724.11(4). A denial must be communicated to the applicant by a

written statement of reasons. Id. § 724.21A(1). An applicant who receives such

a denial may appeal to an ALJ in the department of inspections and appeals. Id.

The ALJ shall hold a contested case hearing pursuant to chapter 17A.                     Id.



1
  This provision lists six disqualifiers: (1) a person is less than twenty-one years of age;
(2) a person is addicted to alcohol; (3) probable cause exists to believe, based upon
documented specific actions of the person, where at least one of the actions occurred
within two years immediately preceding the date of the permit application, that the
person is likely to use a weapon unlawfully or in such other manner as would endanger
the person’s self or others; (4) the person is subject to the provisions of section 724.26;
(5) the person has, within the previous three years, been convicted of any serious or
aggravated misdemeanor defined in chapter 708 not involving the use of a firearm or
explosive; and (6) the person is prohibited by federal law from shipping, transporting,
possessing, or receiving a firearm. See Iowa Code § 724.8
2
  Section 724.26 outlines prohibitions on possession of firearms by felons and persons
who have committed “misdemeanor crimes of domestic violence” or are subject to
certain protective orders. A misdemeanor crime of domestic violence is defined in
section 724.26(2)(c).
                                         9



§ 724.21A(3). At that hearing, the sheriff has the burden to show by clear and

convincing evidence that his written statement of reasons for the denial

constituted probable cause to deny the application. Id. § 724.21A(5). If after the

hearing, the ALJ upholds the sheriff’s denial of the permit, the unsuccessful

applicant has the right to judicial review in accordance with chapter 17A. Id.

§ 724.21A(4).

IV.    Analysis of Lebeck’s claims

       Lebeck organizes his appellate brief into three assignments of error. He

first alleges the district court erred in finding the sheriff presented clear and

convincing evidence the deputy’s reason for denying the permit constituted

probable cause to reject an application. In that same issue, Lebeck alleges his

due process rights were violated because the denial was based upon “mere

probable cause.”    In his second issue, he alleges his rights under the due

process clause, equal protection clause, and the Second Amendment were

violated by the denial of his permit based on a conviction for which there was no

showing he was represented by counsel or knowingly waived that right, or had

the right to a jury trial and knowingly waived that right. In his third issue, he

alleges those same constitutional violations related to the lack of a showing that

his conviction was for an assault under section 708.1, subsection 2, paragraph

“a” or “c.” We will address each of his issues in turn.

       A.     Probable cause requirement

       Lebeck’s first complaint focuses on the sheriff’s proof of the domestic

relationship underlying his assault conviction. Section 724.21A(5) sets out a two-
                                       10



layered standard of review for appeals to the ALJ from a sheriff’s permit denial.

The sheriff has the burden to show by clear and convincing evidence that his

statement of reasons constituted probable cause to deny the application. The

administrative rules define both “clear and convincing” and “probable cause.”

See 481 Iowa Admin. Code r. 11.12(724), 11.13(724).

      Lebeck contends in his brief that the sheriff was required to establish the

existence of a domestic relationship “by clear and convincing evidence such that

it constituted probable cause for Deputy Fisher to deny” Lebeck’s application.

Lebeck mismatches the standards. We read probable cause as the threshold

requirement for the permit denial: the sheriff’s grounds for denial must be

reasonable and substantiated by the facts. At the hearing before the ALJ, the

sheriff must present clear and convincing evidence, that is, evidence which

leaves no room for serious or substantial doubt about the existence of probable

cause for the denial.

      Deputy Fisher based the denial on Lebeck’s 2010 assault conviction.

People who have been convicted of a misdemeanor crime of domestic violence

are ineligible for a permit. Iowa Code §§ 724.8(4), 724.26(2). A misdemeanor

crime of domestic violence is defined as:

      [A]n assault under section 708.1, subsection 2, paragraph ‘a’ or ‘c’,
      committed by a current or former spouse, parent, or guardian of the victim,
      by a person with whom the victim shares a child in common, by a person
      who is cohabiting with or has cohabited with the victim as a spouse,
      parent, or guardian, or by a person similarly situated to a spouse, parent,
      or guardian of the victim.
                                           11



Id. § 724.26(2)(c).3

       Deputy Fisher determined Lebeck’s conviction was for a misdemeanor

crime of domestic violence by reviewing the criminal complaint and affidavit in the

underlying case. The facts in that complaint, sworn by a fellow officer whom

Fisher testified that he knew and trusted, revealed police officers responded to a

“domestic” call at Lebeck’s house. His former live-in girlfriend Robyn Neer was

collecting her belongings from the garage. Neer told the officers she had lived

with Lebeck for eighteen months.        She said as she was moving out Lebeck

“became physical” and threw her against a door. She later showed the officers

bruises on her arms to corroborate her report. Lebeck gave police a different

version of the physical contact, but did not deny the domestic nature of the

relationship.

       Both the ALJ and the district court on appeal found the deputy was entitled

to rely on the complaint to establish the domestic relationship. Lebeck attacks

that reliance, arguing: “A mere recitation of a sentence in a preliminary complaint

authored by another officer with a different law enforcement agency should not

warrant probable cause for the basis of a denial of Appellant’s application.”

       We are not persuaded by Lebeck’s attack on the deputy’s probable cause

determination. A person can be subject to section 724.26 and, thus ineligible for

a weapons permit, even if the underlying misdemeanor assault did not involve a

domestic relationship as a defining element. See United States v. Hayes, 555


3
  Analyzing identical language in the federal definition, the Eighth Circuit held abuse
perpetrated on a live-in girlfriend is domestic abuse committed “by a person similarly
situated to a spouse” for purposes of 18 U.S.C. sections 922(g)(9) and 921(a)(33)(A)(ii).
Buster v. United States, 447 F.3d 1130, 1133 (8th Cir. 2006).
                                          12



U.S. 415, 421 (2009) (upholding firearms possession violation under 18 U.S.C.

§ 922(g)(9) though predicate offense was for generic battery under state law). In

the administrative permit process, the sheriff’s office was required to develop a

well-founded, reasonable belief that in committing a misdemeanor assault

Lebeck used physical force against a victim with whom he had a domestic

relationship—even if his guilty plea did not require a factual basis that such a

relationship existed. The sworn complaint provided probable cause sufficient to

support the original charge, as well as for the denial of the permit.

       Lebeck further argues that even if the deputy’s efforts satisfied probable

cause, that standard sets the bar too low for due process purposes. Lebeck

claims it “not uncommon” for victims to “exaggerate or embellish” the relationship

in a domestic assault prosecution, and the probable-cause standard would allow

a peace officer to “falsely conclude” grounds existed to deny a concealed

weapon permit.      We do not find Lebeck’s argument convincing.           If such

misinformation were included in the record, the permit applicant could present

evidence rebutting the sheriff’s position at the contested case hearing. The clear

and convincing evidence standard would require the ALJ to consider any

countervailing evidence in support of the applicant.          Iowa Code §§ 17A.12,

724.21A(3), (5). Lebeck had the right to be heard as required by procedural due

process. Lebeck has not shown the probable cause standard applied to the

sheriff’s reasons for denial violated his constitutional rights.
                                            13



       B.      Representation by counsel and right to jury trial

       Lebeck next argues his procedural due process rights4 were violated by

the county’s failure to show Lebeck was represented by counsel or knowingly

waived his right to counsel when he pleaded guilty to the simple misdemeanor

assault. Lebeck also contends the county did not establish he waived his right to

a jury trial in the underlying prosecution.

       Lebeck’s argument finds its source in the federal statute defining

“misdemeanor crime of domestic violence.” See 18 U.S.C. § 921(a)(33)(A)(ii).

That provision includes the same definition of a misdemeanor crime of domestic

violence as in Iowa Code section 724.26(2)(c), but further provides:

       A person shall not be considered to have been convicted of such
       an offense for purposes of this chapter, unless—(I) the person was
       represented by counsel in the case, or knowingly and intelligently
       waived the right to counsel in the case; and (II) in the case of a
       prosecution for an offense described in this paragraph for which a
       person was entitled to a jury trial in the jurisdiction in which the
       case was tried, either (aa) the case was tried by a jury, or (bb) the
       person knowingly and intelligently waived the right to have the case
       tried by a jury, by guilty plea or otherwise.

18 U.S.C. § 921(a)(33)(B).

       Before the district court, Lebeck asserted the county did not establish the

counsel or jury trial elements were satisfied in the prosecution of his


4
  Lebeck’s appellate brief also mentions his constitutional rights under the equal
protection clause and the Second Amendment. The judicial review order did not analyze
an equal protection claim and Lebeck did not seek to expand the ruling. Accordingly, the
equal protection issue is not preserved for our review. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (“When a district court fails to rule on an issue properly
raised by a party, the party who raised the issue must file a motion requesting a ruling in
order to preserve error for appeal.”). The judicial review order discussed Lebeck’s rights
under the Second Amendment as a component of its due process analysis, and that is
how Lebeck’s counsel presents that issue on appeal. Accordingly, we will not engage in
a separate analysis under the Second Amendment.
                                         14



misdemeanor assault offense. The district court ruled Lebeck was “arguing for a

requirement not found in the [state] statute.”      The court concluded the Iowa

legislature did not incorporate the right-to-counsel and right-to-jury-trial

requirements from section 921(a)(33)(B) in the federal statute. We agree with

the district court’s conclusion. The definition in section 724.26(2)(c) does not

require proof regarding a defendant’s right to counsel or waiver or right to jury

trial or waiver to show a valid conviction for a misdemeanor crime of domestic

violence for purposes of the state statute. Section 921(a)(33)(B) limits the reach

of the counsel and jury trial requirements by using the language “for the purposes

of this chapter”—so the federal requirements do not apply to state proceedings

by virtue of the cross reference in Iowa Code section 724.26(2)(a).

       On appeal, Lebeck acknowledges “neither of the safeguards required by

federal statute apply to the Iowa process.” He argues the absence of those

safeguards risks an “erroneous deprivation” of his Second Amendment right to

bear arms. The district court noted the safeguards under section 921(a)(33)(B)

have been recognized by the Eighth Circuit as a statutory requirement only, and

not as a constitutional mandate. See United States v. Bena, 664 F.3d 1180,

1186 (8th Cir. 2011). We agree with the district court’s analysis on this point and

adopt it as our own. Lebeck is not entitled to relief on this issue.

       C.     Proof of assault alternative

       In his third assignment of error, Lebeck argues his equal protection rights

were violated because the preliminary complaint leading to the predicate

misdemeanor assault conviction did not specify whether he was being charged
                                               15



under section 708.1(2)(a) or (b).            Subsection (a) can form the basis for a

misdemeanor crime of domestic violence because it has an element of physical

force, while subsection (b) does not.5 See Iowa Code § 724.26(2)(c). The ALJ

quoted the complaint, which included an allegation that Lebeck “became physical

and threw [the victim] into the door and grabbed her by her upper arms and

forced her out the door.” The district court did not address an equal protection

claim, nor did it directly address the uncertainty of which assault alternative was

the subject of the charge and conviction.

          Iowa Rule of Appellate Procedure 6.903(2)(g)(1) requires appellants to

state how the issues being raised were preserved for appellate review, “with

references to the places in the record where the issue was raised and decided.”

Lebeck’s appellate brief does not do refer to any place in the record where this

equal protection claim was decided.                 Accordingly, we give this issue no

consideration. See Runyon v. Kubota Tractor Corp., 653 N.W.2d 582, 584 (Iowa

2002) (deeming issue waived when appellant did not state how or where

constitutional claim was raised in the trial court).

          AFFIRMED.




5
    Iowa Code section 708.1(2)(a), (b) provides:
                A person commits an assault when, without justification, the
         person does any of the following:
                a. Any act which is intended to cause pain or injury to, or which is
         intended to result in physical contact which will be insulting or offensive to
         another, coupled with the apparent ability to execute the act.
                b. Any act which is intended to place another in fear of immediate
         physical contact which will be painful, injurious, insulting, or offensive,
         coupled with the apparent ability to execute the act.
