             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-880

                                Filed: 17 April 2018

Mecklenburg County, No. 17 CVD 3949

DANIEL RYAN DEBRUHL, Petitioner,

            v.

MECKLENBURG COUNTY SHERIFF’S OFFICE, Respondent.


      Appeal by petitioner from order entered 28 April 2017 by Judge Regan A.

Miller in Mecklenburg County District Court. Heard in the Court of Appeals 24

January 2018.


      Redding Jones, PLLC, by Ty Kimmell McTier and David G. Redding, for
      petitioner-appellant.

      Ruff Bond Cobb Wade & Bethune, LLP, by Ronald L. Gibson, for respondent-
      appellee.


      ZACHARY, Judge.


      The issue presented is whether the due process clause of the Fourteenth

Amendment requires that the applicant be afforded an opportunity for an evidentiary

hearing to contest the denial of his application for renewal of a Concealed Handgun

Permit pursuant to N.C. Gen. Stat. § 14-415.12(a)(3). We conclude that it does.

I. Factual Background

      On 9 September 2016, Petitioner Daniel Ryan DeBruhl submitted an

application for the renewal of his Concealed Handgun Permit to the Mecklenburg

County Sheriff’s Office. A veteran of the United States military, Petitioner had
                DEBRUHL V. MECKLENBURG COUNTY SHERIFF’S OFFICE

                                   Opinion of the Court



maintained a Concealed Handgun Permit for ten years prior to submitting his

renewal application. The Sheriff’s Office issued a perfunctory denial of Petitioner’s

application for renewal on 14 December 2016, without notice of the nature of or basis

for the denial or any opportunity for Petitioner to be heard on the allegations against

him.

       The communication that advised Petitioner of the denial contained the

following information:

             It is found that your actions for the following constitute a
             violation of the provisions set forth in the North Carolina
             General Statute 14-415.12 for the possession of a concealed
             handgun permit.

             Your application for a concealed handgun permit has been
             denied for the following reasons:

             [N.C. Gen. Stat. §] 14-415.12(a) – Does not meet the
             requirements for application

             [N.C. Gen. Stat. §] 14-415.12(b)(1) – Ineligible to own,
             possess, or receive firearm under State or Federal Law

             YOU ARE DENIED DUE TO INFORMATION RECEIVED
             FROM VETERANS AFFAIRS.

       Petitioner appealed the Sheriff’s decision to the district court on 6 March 2017,

but complained that “there is no way for Petitioner to know what facts to challenge

on appeal” because of the lack of facts “provided in the Denial”. After “having

reviewed [Petitioner’s] criminal background and other relevant information,” the

Honorable Regan A. Miller entered an order “Denying Appeal For A Concealed


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Handgun Permit” on 24 April 2017. In Finding of Fact No. 5, the trial court concluded

that the Sheriff’s Office “denied [Petitioner] a Concealed Handgun Permit because

[Petitioner] sought or received mental health and/or substance abuse treatment in

2016,” although Petitioner had not previously been adjudicated to be mentally ill. In

Finding of Fact No. 6, the district court found that Petitioner “suffers from a mental

health disorder that affects his ability to safely handle a firearm.” 1 Based on these

findings, the district court concluded that “[t]he Sheriff’s decision was a reasoned and

reasonable decision[,]” and affirmed the denial of Petitioner’s Concealed Handgun

Permit renewal application. Petitioner was not afforded any opportunity to be heard

on the matter before the court entered its order.

        Petitioner filed notice of appeal to this Court on 30 May 2017. On appeal,

Petitioner argues that “the district court’s finding of fact that petitioner suffers from

a mental health disorder was improper absent a formal adjudicatory hearing

regarding petitioner’s mental competency and violates petitioner’s due process

rights.” In the alternative, Petitioner argues that the district court’s “application of

section N.C.G.S. § 14-415.12(a)(3) is overbroad, contrary to statutory construction

and encompasses a myriad of protected activities under the Second Amendment of

the United States Constitution.”


        1 While neither the Sheriff’s Office nor the district court cited a specific statutory provision,
the district court’s language tracks that of N.C. Gen. Stat. § 14-415.12(a)(3), which provides for the
denial of a Concealed Handgun Permit if the applicant “suffer[s] from a physical or mental infirmity
that prevents the safe handling of a handgun.”

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       We find Petitioner’s due process claim dispositive.

II. North Carolina Statutory Framework

       In North Carolina, “[a]ny person who has a concealed handgun permit may

carry a concealed handgun unless otherwise specifically prohibited by law.” N.C.

Gen. Stat. § 14-415.11(a) (2017). The criteria for obtaining a Concealed Handgun

Permit are set forth in N.C. Gen. Stat. § 14-415.12. A permit is obtained from the

local sheriff and once issued is valid for five years. N.C. Gen. Stat. § 14-415.11(b)

(2017). If an individual applies to renew his Concealed Handgun Permit, the sheriff

must determine whether that individual “remains qualified to hold a permit in

accordance with the provisions of G.S. 14-415.12.” N.C. Gen. Stat. § 14-415.16(c)

(2017).

       N.C. Gen. Stat. § 14-415.12 provides that a sheriff “shall issue” a Concealed

Handgun Permit to an applicant so long as “the applicant qualifies under the

following criteria:”

              (a) . . .

                          (1) The applicant is a citizen of the United States or
                          has been lawfully admitted for permanent residence
                          . . . and has been a resident of the State 30 days or
                          longer immediatly preceding the filing of the
                          application.

                          (2) The applicant is 21 years of age or older.

                          (3) The applicant does not suffer from a physical or
                          mental infirmity that prevents the safe handling of


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   a handgun.

   (4) The applicant has successfully completed an
   approved firearms safety and training course which
   involves the actual firing of handguns and
   instruction in the laws of this State governing the
   carrying of a concealed handgun and the use of
   deadly force. The North Carolina Criminal Justice
   Education and Training Standards Commission
   shall prepare and publish general guidelines for
   courses and qualifications of instructors which
   would satisfy the requirements of this subdivision.
   An approved course shall be any course which
   satisfies the requirements of this subdivision and is
   certified or sponsored by:

         a. The North Carolina Criminal Justice
         Education   and   Training  Standards
         Commission,

         b. The National Rifle Association, or

         c. A law enforcement agency, college, private
         or public institution or organization, or
         firearms training school,       taught by
         instructors certified by the North Carolina
         Criminal Justice Education and Training
         Standards Commission or the National Rifle
         Association.

         Every instructor of an approved course shall
         file a copy of the firearms course description,
         outline, and proof of certification annually, or
         upon modification of the course if more
         frequently, with the North Carolina Criminal
         Justice Education and Training Standards
         Commission.

   (5) The applicant is not             disqualified   under
   subsection (b) of this section.


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                                   Opinion of the Court




N.C. Gen. Stat. § 14-415.12(a) (2017). Even where the applicant satisfies subsections

(a)(1)-(4) above, however,

             (b) The sheriff shall deny a permit to an applicant who:

                    (1) Is ineligible to own, possess, or receive a firearm
                    under the provisions of State or Federal law.

                    (2) Is under indictment or against whom a finding of
                    probable cause exists for a felony.

                    (3) Has been adjudicated guilty in any court of a
                    felony . . . .

                                               ...

                    (6) Is currently, or has been previously adjudicated
                    by a court or administratively determined by a
                    governmental agency whose decisions are subject to
                    judicial review to be, lacking mental capacity or
                    mentally ill. Receipt of previous consultative
                    services or outpatient treatment alone shall not
                    disqualify an applicant under this subdivision.

                                               ...

                    (8) Except as provided in subdivision (8a), (8b), or
                    (8c) of this section, is or has been adjudicated guilty
                    of . . . one or more crimes of violence constituting a
                    misdemeanor . . . within three years prior to the date
                    on which the application is submitted.

N.C. Gen. Stat. § 14-415.12(b) (2017).

      The statute thus includes two provisions related to mental health: N.C. Gen.

Stat. § 14-415.12(a)(3) and N.C. Gen. Stat. § 14-415.12(b)(6). The critical distinction


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between the two subsections is the requirement of a prior adjudicatory hearing.

Under N.C. Gen. Stat. § 14-415.12(b)(6), if an applicant has been adjudicated to be

“lacking mental capacity or mentally ill[,]” the sheriff must deny the application.

However, even without a prior adjudication of mental illness, if a sheriff determines

that an applicant “suffer[s] from a physical or mental infirmity that prevents the safe

handling of a handgun” under N.C. Gen. Stat. § 14-415.12(a)(3), the sheriff may deny

the application.

III. The Due Process Clause

       The Fourteenth Amendment to the United States Constitution provides that

“No State shall . . . deprive any person of life, liberty, or property, without due process

of law[.]” U.S. Const. amend. 14, § 1. An important check on the power of the

government, the principle of procedural due process requires that the states afford

the individual a certain level of procedural protection before a governmental decision

may be validly enforced against the individual. Procedural due process safeguards

may be invoked when a state seeks to apply its laws in a manner in which individuals

are “exceptionally affected, in each case upon individual grounds[.]”          Bi-Metallic

Invest. Co. v. State Bd. of Equalization, 239 U.S. 441, 446, 60 L. Ed. 372, 375 (1915)

(discussing Londoner v. Denver, 210 U.S. 373, 385, 52 L. Ed. 1103, 1112 (1908)).

       “The touchstone of [procedural] due process is protection of the individual

against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 41



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                                   Opinion of the Court



L. Ed. 2d 935, 952 (1974) (citation omitted). In order to guard against the threat of

any such arbitrary government action, “the right to some kind of prior hearing is

paramount.” Bd. of Regents v. Roth, 408 U.S. 564, 569-70, 33 L. Ed. 2d 548, 556

(1972). The United States Supreme Court has consistently held that “[t]he right to be

heard before being condemned to suffer grievous loss of any kind . . . is a principle

basic to our society.” Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32

(1976) (citation and quotation marks omitted). However, whether a state will owe

procedural due process protections to an individual depends upon the nature of the

individual right that is at stake. “The requirements of procedural due process apply

only to the deprivation of . . . liberty and property” interests. Roth, 408 U.S. at 569,

33 L. Ed. 2d at 556.

      Accordingly, in order for Petitioner to prevail in his argument that he was

entitled to a hearing on appeal from the denial of his renewal application, it must

first be determined that he had a property or liberty interest in retaining his

Concealed Handgun Permit that was deserving of due process protection.

IV. Whether Process was Owed

      Petitioner maintains in the instant case that he was entitled to due process

protection in the form of a hearing because he “had both a liberty and property

interest at issue at the time of the Denial.” The Sheriff’s Office maintains that “[t]he

District Court’s Order affirming the Sheriff’s denial of the [Petitioner’s] Application



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                                   Opinion of the Court



for a Concealed [Handgun] Permit does not violate any constitutional right to bear

arms . . . .” We first address Petitioner’s contention that he had a vested property

interest in his Concealed Handgun Permit at the time of the denial of his application.

      “[T]he property interests protected by procedural due process extend well

beyond actual ownership of real estate, chattels, or money.” Roth, 408 U.S. at 571-

72, 33 L. Ed. 2d at 557. In this sense, a property interest “may take many forms.” Id.

at 576, 33 L. Ed. 2d at 560. Nevertheless, “[t]he Fourteenth Amendment’s procedural

protection of property is a safeguard of the security of interests that a person has

already acquired in specific benefits.” Id. “To have a property interest in a benefit, a

person clearly must have more than an abstract need or desire for it. . . . He must,

instead, have a legitimate claim of entitlement to it.” Id. at 577, 33 L. Ed. 2d at 561.

      A legitimate claim of entitlement is often created by statute.            E.g., id.

(“Property interests . . . are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as state law[.]”); Wolff,

418 U.S. at 557, 41 L. Ed. 2d at 951; Peace v. Employment Sec. Comm’n, 349 N.C.

315, 321, 507 S.E.2d 272, 277 (1998) (citation omitted) (“State law determines

whether an individual . . . does or does not possess a constitutionally protected

‘property’ interest in continued employment.”). For example, in Goldberg v. Kelly,

397 U.S. 254, 25 L. Ed. 2d 287 (1970), the United States Supreme Court “held that a

person receiving welfare benefits under statutory and administrative standards



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                                    Opinion of the Court



defining eligibility for them has an interest in continued receipt of those benefits that

is safeguarded by procedural due process.” Roth, 408 U.S. at 576, 33 L. Ed. 2d at 560

(discussing Goldberg). A valid property interest existed in Goldberg because the

welfare payments were “grounded in the statute defining eligibility[.]” Id. at 577, 33

L. Ed. 2d at 561. While “[t]he recipients had not yet shown that they were, in fact,

within the statutory terms of eligibility[,]” the Supreme Court “held that they had a

right to a hearing at which they might attempt to do so.” Id.

      In contrast, in Bd. of Regents v. Roth, the respondent had a “ ‘property’ interest

in employment at Wisconsin State University-Oshkosh [that] was created and

defined by the terms of his appointment.” Id. at 578, 33 L. Ed. 2d at 561. However,

those terms “specifically provided that the respondent’s employment was to

terminate” after the one-year contract term, and “they made no provision for renewal

whatsoever.” Id. Under those circumstances, “the respondent surely had an abstract

concern in being rehired, but he did not have a property interest sufficient to require

the University authorities to give him a hearing when they declined to renew his

contract of employment.” Id. The decision to rehire the respondent was left solely to

the discretion of the University.

      The statutory regime in the present case is analogous to that in Goldberg.

Petitioner’s initial permit was valid only for a period of five years, and there is no

question but that, pursuant to the provisions of the statute, he maintained a property



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                                   Opinion of the Court



interest in that permit during those years. Moreover, Petitioner maintained a

property interest in the renewal of his Concealed Handgun Permit upon expiration of

his prior permits. The relevant statute provides that “[t]he sheriff shall issue a permit

to carry a concealed handgun to a person who qualifies for a permit under G.S. 14-

415.12.” N.C. Gen. Stat. § 14-415.11(b) (2017) (emphasis added). Because the statute

does not give the local sheriff unfettered, unassailable discretion in the issuance of

permit renewals, an applicant enjoys a legitimate claim of entitlement to renewal so

long as the enumerated criteria have been satisfied.        E.g., Mallette v. Arlington

County Emples. Supplemental Retirement Sys. II, 91 F.3d 630, 635 (4th Cir. 1996).

Thus, Petitioner had a clear property interest in the renewal of his Concealed

Handgun Permit, and was entitled to procedural due process protections.

      In that Petitioner had a recognized property interest in the renewal of his

Concealed Handgun Permit, we need not determine whether he also had a liberty

interest in its renewal.

V. What Process was Due

      Having established that Petitioner had a property interest in the issuance of

his Concealed Handgun Permit sufficient to trigger procedural due process

protection, we must determine whether Petitioner was deprived of such protection by

the manner in which his renewal application was denied.




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                                     Opinion of the Court



      The statute at issue provides that a sheriff may deny an application for a

Concealed Handgun Permit pursuant N.C. Gen. Stat. § 14-415.12(a)(3) without first

holding a hearing on the matter. See Kelly v. Riley, 223 N.C. App. 261, 265, 733

S.E.2d 194, 197 (2012) (“N.C. Gen. Stat. § 14-415.16 . . . specifically governs renewal

of a concealed handgun permit[,] [and] does not require a hearing prior to the

nonrenewal of an applicant’s concealed handgun permit.”) (quotation marks and

alterations omitted). The statute instead affords the following scope of procedural

protections:

               A person’s application for a permit shall be denied only if
               the applicant fails to qualify under the criteria listed in this
               Article. If the sheriff denies the application for a permit,
               the sheriff shall, within 45 days, notify the applicant in
               writing, stating the grounds for the denial. An applicant
               may appeal the denial, revocation, or nonrenewal of a
               permit by petitioning a district court judge of the district in
               which the application was filed. The determination by the
               court, on appeal, shall be upon the facts, the law, and the
               reasonableness of the sheriff’s refusal. The determination
               by the court shall be final.

N.C. Gen. Stat. § 14-415.15(c) (2017). Accordingly, following a sheriff’s denial of a

Concealed Handgun Permit application, the process afforded is the applicant’s

opportunity to appeal that decision.

      The question remains, however, whether the opportunity to obtain appellate

review is sufficient when that review is unaccompanied by an opportunity to be heard.




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                                    Opinion of the Court



We conclude that appellate review without an opportunity to be heard does not satisfy

the demands of due process.

      It is manifest that “some kind of hearing is required at some time before a

person is finally deprived of his property interests.” Wolff, 418 U.S. at 557-58, 41 L.

Ed. 2d at 952 (citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123,

168, 95 L. Ed. 817, 852 (1951)).

             Man being what he is cannot safely be trusted with
             complete immunity from outward responsibility in
             depriving others of their rights. . . . That a conclusion
             satisfies one’s private conscience does not attest its
             reliability. The validity . . . of a conclusion largely depend[s]
             on the mode by which it was reached. Secrecy is not
             congenial to truth-seeking and self-righteousness gives too
             slender an assurance of rightness. No better instrument
             has been devised for arriving at truth than to give a person
             in jeopardy of serious loss notice of the case against him
             and opportunity to meet it. Nor has a better way been
             found for generating the feeling, so important to a popular
             government, that justice has been done.

Joint Anti-Fascist Refugee Committee, 341 U.S. at 171-72, 95 L. Ed. at 854.

Nevertheless, “[t]hat a hearing has been thought indispensable in so many other

situations, leaving the cases of denial exceptional, does not itself prove that it must

be found essential [everywhere].” Joint Anti-Fascist Refugee Committee, 341 U.S. at

172, 95 L. Ed. at 854. It does, however, create a “burden of showing weighty reason

for departing in [an] instance from a rule so deeply imbedded in history and in the

demands of justice.” Id.



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                                   Opinion of the Court



      In the case at bar, nothing has been presented to this Court that would justify

the departure from such a significant safeguard of the rights of the individual. There

has been no indication “that it will be impractical or prejudicial to a concrete public

interest to disclose” to an applicant the nature and basis of the denial of the

applicant’s renewal application and, when on the grounds that the applicant “suffer[s]

from a . . . mental infirmity,” “to permit [the applicant] to meet [the allegations] if

[the applicant] can.” Joint Anti-Fascist Refugee Committee, 341 U.S. at 172-73, 95 L.

Ed. at 854. Instead, our attention has been directed to Kelly v. Riley, 223 N.C. App.

261, 733 S.E.2d 194 (2012), in support of the argument of the Sheriff’s Office that the

“denial of [Petitioner’s] Application for a Concealed [Handgun] Permit does not

violate any constitutional right to bear arms[.]” However, Kelly is inapplicable to the

case at bar.

      In Kelly, the sheriff’s office denied the petitioner’s application for a Concealed

Handgun Permit under the mandatory disqualification provision of N.C. Gen. Stat. §

14-415.12(b)(8) because the petitioner had a “previous conviction for assault on a

female[.]” Kelly, 223 N.C. App. at 262, 733 S.E.2d at 195. It is important to note that

Kelly involved issues of substantive due process rather than procedural due process.

Moreover, in Kelly the petitioner was afforded a hearing on appeal from the denial of

his Concealed Handgun Permit. The petitioner had also been protected by the various

adjudication procedures that led to his initial conviction.



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                                    Opinion of the Court



      In the instant case, Petitioner was not afforded the benefit of an adjudicatory

proceeding prior to the district court’s affirmance of the Sheriff’s Office’s denial of his

Concealed Handgun Permit renewal on the grounds that Petitioner “suffers from a

mental health disorder that affects his ability to safely handle a firearm.” Rather, the

procedures employed consisted of (1) a vague, bare bones written notice advising

Petitioner that his application had been denied, and (2) an opportunity to appeal that

denial. The written notice stated that Petitioner had been denied pursuant to “NCGS

14-415.12(a)—Does not meet the requirements for application.” The notice did not

specify which subsection of N.C. Gen. Stat. § 14-415.12(a) Petitioner did not satisfy,

nor did it provide him with an explanation of the factual basis for the denial. Finally,

the notice informed Petitioner that “You may appeal the decision by submitting a

written or typed petition (statement); or complete the appeal form and submit to the

Senior Resident Superior Court Judge setting forth the reasons for appeal.” In

Petitioner’s appeal to the district court, he noted that “[t]he information provided in

the Denial is so minimal that there is no way for Petitioner to know what facts to

challenge on appeal.” Petitioner was not subsequently provided with any such

information, and on appeal the district court merely “reviewed [Petitioner’s] . . .

relevant information” before finding that Petitioner “suffers from a mental health

disorder that affects his ability to safely handle a firearm.” It is undisputed that

Petitioner was first informed of the precise grounds for the denial of his renewal



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                                  Opinion of the Court



application in the district court’s order. Petitioner was not afforded a hearing on

appeal, nor was he given an opportunity to submit even minimal contradictory

information, before the district court made its final determination.

      These procedures were wholly inadequate. The State’s prohibition against the

grant of a Concealed Handgun Permit to a person who “suffer[s] from a . . . mental

infirmity that prevents the safe handling of a handgun” necessarily requires an

individualized inquiry as to whether the specific applicant does indeed suffer from a

mental infirmity. N.C. Gen. Stat. § 14-415.12(a)(3) (2017). The absence of any prior

process requires that, if sought, process is due at that moment. This is particularly

so in the instant case, as a determination under N.C. Gen. Stat. § 14-415.12(a)(3) that

an individual suffers “from a . . . mental infirmity that prevents the safe handling of

a handgun” is especially susceptible to the type of arbitrary governmental action that

the due process clause was designed to prevent.

      We do not discount the safety concerns expressed by the Sheriff’s Office.

Nonetheless, “[t]he heart of the matter is that democracy implies respect for the

elementary rights of men. . . .” Joint Anti-Fascist Refugee Committee, 341 U.S. at 170,

95 L. Ed. at 853. “[A] democratic government must therefore practice fairness; and

fairness can rarely be obtained by secret, one-sided determination of facts decisive of

rights.” Id. The State is not “immune from the historic requirements of fairness




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                                   Opinion of the Court



merely because [it] acts, however conscientiously, in the name of security” and safety.

Id. at 173, 95 L. Ed. at 855.

      At the very least, it is evident that “some kind of hearing is required at some

time before a person is finally deprived of his property interests.” Wolff, 418 U.S. at

557-58, 41 L. Ed. 2d at 952 (citation omitted). We need not determine the full panoply

of rights that Petitioner should have been afforded had there been a hearing in the

present case. By definition, “a hearing, in its very essence, demands that he who is

entitled to it shall have the right to support his allegations by argument, however

brief; and, if need be, by proof, however informal.” Londoner, 210 U.S. at 386, 52 L.

Ed. at 1112. Here, Petitioner was deprived of his procedural due process safeguards

by the absence of any hearing whatsoever.

VI. Conclusion

      Where a local sheriff determines that an application for renewal of a Concealed

Handgun Permit ought to be denied on the grounds that the applicant “suffer[s] from

a . . . mental infirmity that prevents the safe handling of a handgun[,]” that applicant

must be afforded an opportunity to dispute the allegations underlying the denial

before it becomes final. The opportunity to appeal the denial to the district court as

set forth in N.C. Gen. Stat. § 14-415.15(c) is procedurally sufficient only to the extent

that it provides an opportunity for the applicant to be heard at that stage. At a

minimum, an applicant denied the renewal of a permit pursuant to the provisions of



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                                   Opinion of the Court



this subsection must be provided notice of the precise grounds for the sheriff’s denial,

together with the information alleged in support thereof. This process must be

followed by an opportunity to contest the matter in a hearing in district court.

Because neither was afforded in the instant case, the district court’s Order Denying

Appeal For A Concealed Handgun Permit is reversed. The matter is reversed and

remanded for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.

      Judges CALABRIA and ARROWOOD concur.




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