Judge’s order officially ends gun permit dispute involving Mecklenburg sheriff

A federal judge has signed off on an agreement ending a federal lawsuit Second Amendment advocates filed against the Mecklenburg County sheriff. Plaintiffs had argued that Sheriff Garry McFadden was taking too long to conduct mental health checks before issuing concealed handgun permits.

“It is hereby ordered that Defendant Sheriff Gary McFadden, in his official capacity as Sheriff of Mecklenburg County, shall issue or deny all concealed handgun permit applications within 45 days of receipt of those items listed in N.C. GEN. STAT. § 14-415.13(a), a response from the National Instant Criminal Background System (‘NICS’) and the Administrative Office of the Courts, and receipt of any mental health records from doctors, hospitals, or other providers, listed in an applicant’s AOC form SP-914,” according to a consent decree US District Judge Max Cogburn signed Wednesday.

SP-914 is a form from the state Administrative Office of the Courts titled “Release Of Physical And Mental Health, Substance Abuse, And Confidential Court Records For Concealed Handgun Permit.”

“[T]he Sheriff may seek mental health records regarding any applicant only if that applicant indicates (i) that he or she has sought treatment for mental health at a provider which has been listed by the applicant on AOC form SP-914, or (ii) has answered yes to the question ‘Are you currently or have you been previously adjudicated or administratively determined to be lacking mental capacity or mentally ill’ or (iii) has answered ‘yes’ to the question ‘Are you an unlawful user of (or addicted to) marijuana, alcohol, or any depressant, stimulant or narcotic drug, or any other controlled substance as defined in 21 U.S.C. 802’ on the concealed handgun permit application,” the order continued.

McFadden will pay $5,000 for the plaintiffs’ attorneys’ fees, along with the plaintiffs’ portion of a mediation fee.

“While we are disappointed that McFadden refuses to pay the full legal fees incurred by those denied their rights due to his malfeasance as a public servant, as a public policy organization, GRNC is happy that McFadden has capitulated on permit delays,” Grass Roots North Carolina wrote in a news release Tuesday. 

Cogburn had issued an August 2023 ruling that offered mixed news to McFadden’s critics. The judge allowed a Second Amendment complaint to proceed against the sheriff. But Cogburn rejected the plaintiffs’ request for an injunction against McFadden. The judge also threw out a constitutional challenge against mental health requirements for concealed handgun permits.

Plaintiffs include gun-rights groups Grass Roots North Carolina, Gun Owners Foundation, Gun Owners of America, and Rights Watch International.

“The Court finds that, to the extent Plaintiffs make a facial challenge to the North Carolina mental health statutes, Plaintiffs’ Second Amendment and other constitutional claims have no merit,” Cogburn wrote in 2023.

“The Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen mandates dismissal of a facial challenge to the North Carolina mental health statutes at issue,” the judge wrote. “In Bruen, the Supreme Court struck down New York State’s ‘proper cause’ statute for concealed carry permits. In so doing, the Supreme Court held that ‘[t]o justify its regulation [of firearms], the government may not simply posit that the regulation promotes an important interest. Rather the government must demonstrate that the regulation is consistent with this Nation’s historical treatment of firearm regulation.’”

“The question before this Court, then, is whether the North Carolina mental health statutes at issue are consistent with this Nation’s historical treatment of firearm regulation. The Court concludes that they are,” Cogburn explained.

“Here, the North Carolina mental health statutes simply require every Sheriff’s Office to determine whether someone is mentally ill and thus cannot safely handle a handgun, a proposition which the Supreme Court has repeatedly recognized is consistent with this country’s historical tradition,” he wrote. “Moreover, the statutes’ plain language, on its own, does not create unreasonable waiting times for obtaining permits. For these reasons, the Court finds that the challenged North Carolina mental health statutes do not, on their face, violate the Second Amendment, or any other federal Constitutional provision.”

Cogburn noted that all three individual plaintiffs in the case had received concealed handgun permits since filing suit. The turnaround time from application to issued permit ranged from six months to nine months.