Nebraska upholds gun restriction against man convicted of misdemeanor

February 20, 2014

Nebraska upholds gun restriction against man convicted of misdemeanor

Nebraska recognizes a person's right under the Second Amendment to bear arms. However, a person can lose that right if convicted of a violent crime. The state upholds the right to deny a permit to carry a concealed handgun for people who have previous violent convictions or for those who the state otherwise views as a danger to themselves or others.

On January 17, the state's highest court recently revisited this issue and ultimately upheld the Nebraska State Patrol's decision to deny a man's right to carry a concealed weapon because of a previous conviction of a misdemeanor sexual assault.

A jury convicted the man in 2008 of inappropriately touching a 12-year-old girl under her shirt while she was sleeping, finding him guilty of a Class I misdemeanor. In 2011, the man applied for a permit to carry a concealed handgun, which the State Patrol denied. The man appealed to the District Court, which affirmed the state patrol's decision. The man then appealed to the state Supreme Court, arguing that no act of violence took place during the incident that resulted in his conviction and therefore he should be allowed to obtain a permit for a concealed handgun.

Under Nebraska state law, to receive a permit for a concealed handgun the applicant cannot "have been convicted of a misdemeanor crime of violence under the laws of this state or under the laws of any other jurisdiction within the ten years immediately preceding the date of application." The Nebraska Legislature has not defined what constitutes a "crime of violence." In its decision, the hearing court determined that under Nebraska case law, a crime of violence is "an act which injures or abuses through the use of physical force." Under this definition, the hearing officer determined that the man had been convicted of a violent crime misdemeanor and upheld the state patrol's decision.

The Nebraska Supreme Court ultimately agreed with the District Court. The author of the opinion, Justice Miller-Lerman, wrote that "[a]n attempt to commit a crime is indicative of future behavior," and that current law is in place "to prevent people with a demonstrated propensity to commit crimes . . . from carrying concealed weapons so as to minimize the risk of future gun violence."

Gun crimes carry consequences

The right to bear arms is fundamental to many Americans. However, for people who have run afoul of the law, subsequent violations, including for illegal gun possession, can be severe. People in Nebraska accused of a gun crime should contact an experienced criminal defense attorney to discuss their legal rights and options.

Article provided by Berry Law Firm
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