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NH Alert! The DoS Has Changed the P&R License Application Form!**UPDATE POST 406
- Thread starter soloman02
- Start date
Saying NH chiefs have some discretion!= the unlimited discretion of MA CoP
Looks to me like nothing has actually changed, it's all hand-wringing by people looking for either something to worry about or backing for the meme that NH is turning into MA with extra pine trees. IMHO, there's nothing in the sentence "...give some measure of discretion to the issuing authority to deny an application if it deems the applicant to be unsuitable" that wasn't always in the letter of the law as codified, or that changes the outcome if a resident is arbitrarily denied.
Applicants can (and should) still hold chiefs' feet to the fire after 14 days without peril, RSA 159:6-c explicitly states "During this hearing the burden shall be upon the issuing authority to demonstrate by clear and convincing proof why any denial, suspension, or revocation was justified".
So yes, some discretion, but nto leeway for arbitrary and capricious denial like you have in MA.
Looks to me like nothing has actually changed, it's all hand-wringing by people looking for either something to worry about or backing for the meme that NH is turning into MA with extra pine trees. IMHO, there's nothing in the sentence "...give some measure of discretion to the issuing authority to deny an application if it deems the applicant to be unsuitable" that wasn't always in the letter of the law as codified, or that changes the outcome if a resident is arbitrarily denied.
Applicants can (and should) still hold chiefs' feet to the fire after 14 days without peril, RSA 159:6-c explicitly states "During this hearing the burden shall be upon the issuing authority to demonstrate by clear and convincing proof why any denial, suspension, or revocation was justified".
So yes, some discretion, but nto leeway for arbitrary and capricious denial like you have in MA.
DispositionMatrix
NES Member
Assuming that is true, it should be qualified with the adverb yet.
I'm not going to put "yet" on every sentence that refers to the current state of the law as written, when there is not wiggle room in the letter of the law.
Sure, a new bill could be passed in 2015 and signed by New Hampshire's next governor changing the wording of the law, but as the law is written today, there is not leeway for arbitrary and capricious denial in RSA 159:6.
Thank you. Any idea how much case law exists, if any, about who is "unsuitable" in NH?
One thing to note is there is a rather low burden here for a CoP to deny:
"At the hearing, the police chief testified that he reviewed the
petitioner’s criminal record, which included a conviction for misdemeanor
criminal threatening in 1994. According to the complaint in that case,
the petitioner stated to a Manchester police officer, “If you f—k with my
dog, I’ll f—king kill you.” The records also showed that in 2010, he was
arrested for a domestic violence-related simple assault charge. As part
of a negotiated agreement, the town placed the charge on file without a
finding, and a criminal bail protective order was entered against the
petitioner prohibiting him from contacting the complainant. In 1998, the
petitioner was convicted for reckless operation of a motorcycle. Based
upon the evidence at the hearing, the trial court found that the
respondent demonstrated by clear and convincing proof that the denial of
his application was justified. In addition, the trial court made its own
determination that the petitioner was not a suitable person to be
licensed. See Kozerski v. Steere, 121 N.H. at 472."
Two decade old criminal threatening conviction, reckless operation (16 years old), and an four year old arrest for assault with a CWOF is grounds for a denial.
How many people will this now ensnare who were at one time "young and dumb?"
While it is not "arbitrary" there is serious concern here. This standard is now lower than the one set in the Dover case (bleiler) where the guy had several convictions (more violent in nature) and a lengthy arrest history.
"At the hearing, the police chief testified that he reviewed the
petitioner’s criminal record, which included a conviction for misdemeanor
criminal threatening in 1994. According to the complaint in that case,
the petitioner stated to a Manchester police officer, “If you f—k with my
dog, I’ll f—king kill you.” The records also showed that in 2010, he was
arrested for a domestic violence-related simple assault charge. As part
of a negotiated agreement, the town placed the charge on file without a
finding, and a criminal bail protective order was entered against the
petitioner prohibiting him from contacting the complainant. In 1998, the
petitioner was convicted for reckless operation of a motorcycle. Based
upon the evidence at the hearing, the trial court found that the
respondent demonstrated by clear and convincing proof that the denial of
his application was justified. In addition, the trial court made its own
determination that the petitioner was not a suitable person to be
licensed. See Kozerski v. Steere, 121 N.H. at 472."
Two decade old criminal threatening conviction, reckless operation (16 years old), and an four year old arrest for assault with a CWOF is grounds for a denial.
How many people will this now ensnare who were at one time "young and dumb?"
While it is not "arbitrary" there is serious concern here. This standard is now lower than the one set in the Dover case (bleiler) where the guy had several convictions (more violent in nature) and a lengthy arrest history.
The word suitability gives the chiefs unlimited room to play... and the courts are letting them move the ball further downfield every year.
That law needs immediate fixing, and to do that we need a R Governor - more reasons to support Hemingway.
It is this line of thinking that results in the erosion of the right to keep and bear arms.
Instead of erroneously thinking that it is “no big deal”, this should be regarded as yet another incremental infringement.
A right stands on its own. It requires no other party to have “discretion” in the area. Once discretion enters into the equation by another party who has the ability to deny a request, the right in question ceases to be a right and is treated as a privilege instead.
Remember, first it is a right, then it is a privilege, then it is a crime.
Of course those who would wish to ban firearms altogether can’t do it overnight as that would be too obvious.
Instead, they take a piece here and a piece there, counting on some gun owners to say things like “Looks to me like nothing has actually changed, it's all hand-wringing by people looking for either something to worry about...” and put everyone else at ease who, instead, should really should be picking up the phone and contacting their legislators or throwing their hat in the ring to become a legislator to fix this.
Clear and convincing to whom? What if the police chief disagrees with what clear and convincing may be compared to what I think is clear and convincing?
By what standard should we measure “clear and convincing”?
To answer that question as to whether a granting or denial of a license is warranted we must look at the requirements outlined in 159:6 and compare them to the applicant:
RSA159:6 I.(a) said:
Let’s break that down. There are two important clauses:
the applicant has good reason to fear injury to the applicant's person or property or has any proper purpose
AND
that the applicant is a suitable person to be licensed
From a logic perspective, the first clause has three clauses related to each other by the term "or", which means if I can show either a good reason to fear injury to a myself, or my property, or a proper purpose then I satisfy that clause. Later it details what is a proper purpose. This clause is relatively easy to evaluate to true as the definition of "proper purpose" is present right in the statute.
However, the second clause saying that the person must be suitable is joined to the first clause with an AND. This means the suitable clause must also evaluate to true in order to clear the bar for what is required to receive a license.
So who is a "suitable" person? Please indicate where in the NH statutes we can find a definition of "suitable".
The NHSC, citing that lack of definition, then extrapolated the idea that there must have been some discretion baked into the guidelines on how a license should be granted or else that definition would be there.
It is interesting to note that the NHSC could have easily referred to the NH state constitution for guidance on this matter (emphasis added):
NH State Constitution said:
Instead, they went in the completely opposite direction and injected discretion.
It is this discretion in the second clause which destroys the right, which then also destroys an applicant's ability to sue the issuing authority and win.
While a shall issue license in and of itself is an infringement, a discretionary license is the next logical progressive step in the infringement path, followed by an eventual removal of the right in its totality.
This assertion is patently false. If there is no objective standard definition of “suitable” codified in law, then by definition it is arbitrary and capricious.
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Quiet
Banned
There was a time when MA was freer than NH is now.
strangenh
NES Member
Those of you squawking now weren't paying attention in 2007 when Bleiler came down. I have no idea what possessed Nappen to hang his appeal on language tacked onto a form, but the standard he cited went byebye effectively in 2007.
Since then... GONH, thanks for sinking con carry... PGNH, thanks for kicking the patient. Can we fix this now?
Those of you think this is new info, search "Bleiler" on this very site.
Since then... GONH, thanks for sinking con carry... PGNH, thanks for kicking the patient. Can we fix this now?
Those of you think this is new info, search "Bleiler" on this very site.
I was talking with another NESer and he believes that Nappen hanging the appeal on the language tacked onto the form was intentional. I mean, he had to have known that the language on the form was not within the statute and that said language was not added via JLCAR. He has been practicing firearms law in NJ and NH for something like 2 decades now. He wrote a damn book on the knife and gun laws in NH!!! Based on that record, he is clearly not incompetent and is quite intelligent WRT the law. If one is demonstrably not an idiot, well a logical assumption is that this was intentional.
And I am inclined to believe this line of reasoning, especially after he decided to "hawk" his services for SB244 during testimony saying it is not to much of a burden because he only charges $1000...
This loss now guarantees Nappen an unlimited supply of plaintiffs to pay him to appeal their license denials.
My daughter mentioned that she applied for her CCW to her boss the other day.
He responded with "awesome, feel free to carry here, I could always use the backup"
Great guy, we need more business owners like him.
I'll post his business name later, (I want to make sure it's ok with him)
He responded with "awesome, feel free to carry here, I could always use the backup"
Great guy, we need more business owners like him.
I'll post his business name later, (I want to make sure it's ok with him)
That's awesome. Had one of my guys come in with his Taurus Judge yesterday.
He sucks
![[angry]](/xen/styles/default/xenforo/smilies.vb/008.gif "Angry [angry]")
So from all of this can I assume that the NHSC is packed with liberal judges? You would think that an experienced lawyer familiar with the courts would have had a good idea how they would rule given the chance.
I'd like to hear Nappans version of what happened.
I'd like to hear Nappans version of what happened.
pdm
NES Member
So he took a dive in order to get more business from an adverse result?
I don't think the NHSC is packed with libs. However, because of the way Nappen argued the case, the judges had no choice but to rule how they did on the language on the back of the form.
The concerning part is that all the judges decided to "lower the bar" on who is not a suitable person. Before you had to have a rather lengthy arrest history and several convictions (Bleiler v Dover). Now just two old misdemeanors (one of which was non-violent) and a CWOF makes you unsuitable for a P&R license.
That is pure unadulterated speculation. If he has become greedy, it makes logical sense. But again, pure speculation so treat it as such.
But I would not be surprised to learn it is true.
Nobody can tell who another person meant... we can just look at what they did and who benefits:
PGNH supports SB244 ---> more work for firearms lawyers.
Nappen loses us the back of the form language --> more denials --> more work for firearms lawyers.
I do not claim to know his mind... but like with any other public figure, one should judge them by what they do and who would benefit from those actions.
The shall issue language on the back of the form was approved by the legal legislative process/JLCAR as far as I can tell
DoS CANNOT legally remove it without making a request that follows the legal/proscribed process.
They MUST restore that language to the back of the form
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KBCraig
NES Member
I think the bottom line of his thinking was, "I'm Evan Nappen!"
You know, a Denny Crane "mad cow" moment.
Thats something that would be valuable to track down and confirm via JLCAR minutes/etc
How the NHSC determined that would be interesting and another good FOIA request.....if NHSC based an opinion on bad info it would open up the entire case to be repealed/eliminated and restore form to original format/content
The two things that need to happen in the next legislative session are
1. Have the legislature pass the form/language and put it in RSA and remove DoS ability to suggest changes
2. Remove ALL rule making authority from bureaucracy.......if a dept wants to submit a rule they can get a sponsor like all of us peons do and submit it as a bill for the legislature to vote on and the gov to sign/veto/ignore
The bureaucracy with rule making authority is the most dangerous threat to liberty/freedom that exists
NH Alert! The DoS Has Changed the P&R License Application Form!**UPDATE POST 190
Expanding on what jpk says above, and looking at it from 10,000ft, it is obvious that this will or should be tied into the push for constitutional carry.
So eliminate ability to change the form without legislative approval.
I can't see this having much better chance of making it to the governor's desk and being signed than constitutional carry did in the last attempt. Especially if we think the change was pushed by the governor (although that conspiracy doesn't seem as likely now that we think the change stems from a horribly argued court case).
I concur with the approach jpk suggests, but coordinated with Constitutional carry such after the election:
Push legislation through to fix the form after the election as a test of the waters, then push through Constitutional Carry a year or so from now as the next cycle starts up.
Push constitutional carry right after the election, and if that fails push through the form fix legislation.
You could do one without the other or both concurrently, but that doesn't make sense.
Regardless, doing nothing and allow may issue to be established in the state is unacceptable.
Expanding on what jpk says above, and looking at it from 10,000ft, it is obvious that this will or should be tied into the push for constitutional carry.
So eliminate ability to change the form without legislative approval.
I can't see this having much better chance of making it to the governor's desk and being signed than constitutional carry did in the last attempt. Especially if we think the change was pushed by the governor (although that conspiracy doesn't seem as likely now that we think the change stems from a horribly argued court case).
I concur with the approach jpk suggests, but coordinated with Constitutional carry such after the election:
Push legislation through to fix the form after the election as a test of the waters, then push through Constitutional Carry a year or so from now as the next cycle starts up.
Push constitutional carry right after the election, and if that fails push through the form fix legislation.
You could do one without the other or both concurrently, but that doesn't make sense.
Regardless, doing nothing and allow may issue to be established in the state is unacceptable.
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It should not only be onerous but damn near impossible for unelected bureaucrats to institute rules that carry the force of law.
The purpose of bureaucracy is to implement/enforce LAWS passed and signed by ELECTED officials..........they are not a fourth branch of government.
The purpose of bureaucracy is to implement/enforce LAWS passed and signed by ELECTED officials..........they are not a fourth branch of government.
strangenh
NES Member
Implementation should not have the effect of legislation. Delegation to the exec branch should include only specific rule-making/implementation authority, not blanket authority. Here unfortunately the legislature left the entire form up to an exec branch entity. Clearly the intent would not to have been to let them change the effect of the law merely by changing a form.
This needs a legislative fix. noddaduma's got the right of it.
This needs a legislative fix. noddaduma's got the right of it.
All legislative power resides in the LEGISLATURE.
How is allowing the executive branch the power to make rules that carry the weight of law NOT an executive usurpation of power granted to the LEGISLATIVE branch?
As it stands we're witnessing at the state and federal level an unprecedented abuse of rules that have far greater/widespread impact on our daily lives tha the Legislature does.
Long past time that unelected bureaucrats and the executive branch be stripped of any and all authority to do any such thing.
If bureaucrats percieve a need for a rule they should be forced to find a sponsor and have that rule reviewed and voted on by the legislature in the same manner any bill is subject to
Executive powers are abused every day.....heck, we just witnessed Hassan declare a state of emergency in NH over a couple of crackheads smoking incense.........that declaration of state of emergency carries with it a suspension of a great many rights
These are not things that should be taken lightly and Hassan needs to be held accountable for its abuse
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strangenh
NES Member
When the legislature stupidly delegates the power, that's how. It's not an "usurpation" because the legislature stupidly handed it over for this and many other subjects.
The legislature, having all legislative power, has unfortunately the power to delegate it as it pleases. They've done way too much of it, both parties, no doubt. I'm sure they never thought this form-making power would be used like this and that's their fault. It needs to be undone. Saying they should not have the power to do so is great; I do not disagree that administrative "law" today represents one of the greatest threats to liberty - but you are (as many do on here) confusing "ought" with "is."
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