WMSAThe following is a transcript of Mr. Petrie's appeal of a denial of a PTA. It is interesting for the admissions of the sheriff's department.
PROCEEDINGS
OF MARCH 13, 2007
THE BAILIFF-LAW CLERK: Adam Petrie versus
Sheriff of Jackson County, 0616CV17332-
THE COURT: Could I have your appearances,
please?
MR. JAMISON: Kevin Jamison for Mr. Petrie, your
Honor.
MS. MORTIMER: Your Honor, appearing on behalf of
the Sheriffs of Jackson County.
THE COURT: This is a trial de novo based on the
denial of a concealed weapon; is that right?
MR. JAMISON: No, a permit to acquire a handgun,
your Honor.
THE COURT: Are we ready to proceed?
MR. JAMISON: Yes, sir.
THE COURT: Mr. Jamison.
MR. JAMISON: We call Adam Petrie, your Honor.
THE COURT: Good morning, sir.
THE WITNESS: Good morning.
ADAM
PETRIE, having been first duly sworn by the Judge, testified:
PLAINTIFF’S
EVIDENCE
THE COURT: Mr. Jamison.
MR. JAMISON: Your Honor, we would like you to
take judicial notice of Revised Statutes of Missouri, 571.090.
THE COURT: The Court will do so.
DIRECT
EXAMINATION
BY
MR. JAMISON:
Q.
Is your name Adam Petrie?
A.
Yes.
Q.
Are a resident of Jackson County?
A.
Yes.
Q.
Now, I’m going to show you something called an application to
transfer a handgun.
MR. JAMERSON: Could you mark that Exhibit 1?
(Plaintiff’s
Exhibit No. 1 was marked for identification.
Q.
(By Mr. Jamison) So, Mr. Petrie, now it’s been
marked, properly marked, as Plaintiff’s Exhibit 1, and do you recognize
this?
A.
Yes.
Q.
Is this the application to purchase a handgun that you filled out
at the Jackson County Sheriff’s Office?
A.
Yes.
MR. JAMISON: And, your Honor, I’d like to
introduce Plaintiff’s Exhibit 1.
MS. MORTIMER: No objection, your Honor.
THE COURT: Be received.
Q.
(By Mr. Jamison) Referring to Plaintiff’s
Exhibit 1, did you fill all of this out in your own handwriting?
A.
Yes, I did.
Q.
Nobody else filled it out for you?
A.
No.
Q.
All right. Mr. Petrie, going down to the
question section, are you at least 21 years of age?
A.
Yes.
Q.
And you’re a citizen of the United States?
A.
Yes.
Q.
And you’ve resided in the State of Missouri for at least six
months?
A.
Yes.
Q.
Are you publicly known to be habitually intoxicated or drugged?
A.
No.
Q.
And have you ever pleaded guilty to a felony, either State or
Federal?
A.
No.
Q.
Have you ever been convicted of a felony, State or Federal?
A.
No.
Q.
Are you currently charged with a felony, State or Federal?
A.
No.
Q.
Have you ever pleaded guilty to a misdemeanor involving an
explosive weapon, firearm, firearm silencer or gas gun?
A.
No.
Q.
Have you been convicted of a misdemeanor involving an explosive
weapon, firearm, firearm silencer or gas gun?
A.
No.
Q.
Have you ever been discharged under dishonorable conditions from
the United States Armed Forces?
A.
No.
Q.
Are you currently adjudged mentally incompetent?
A.
No.
Q.
Have you ever been committed to a mental health facility in
Missouri or in any other state?
A.
No.
Q.
Now, you declined to answer the rest of the questions; is that
correct?
A.
Yes.
Q.
But you did write in something at the bottom. What
was that?
A.
I certified that I complied with the Revised Statutes of Missouri,
571.090, Subsection 1.
Q.
Is there a reason why you did not respond to the last three
questions?
A.
Yes.
Q.
What was that?
A.
I believe that I have a right to my privacy and I don’t believe
that they can ask these questions.
Q.
Now, on the second page, is that your signature?
A.
Yes.
Q.
And you crossed out the authorization for release of all medical
records of any kind whatsoever, wherever they might be?
A.
Yes.
Q.
Is that correct?
A.
Yes, it is.
Q.
What was your reason for crossing this out?
A.
I believe I have a right to my privacy. I
believe that the authorization for release is far-reaching, and they could
be requesting my dental records from high school for all I know.
I believe I have my right to privacy.
Q.
You believe that the Sheriff has a right to ask you to release all
records of any kind?
A.
No, not all of my medical records, no.
Q.
Do you know of any reason why you should be denied a permit to
acquire a handgun?
A.
I think there is no reason.
Q.
Have you read the Revised Statutes of Missouri, 571.090?
A.
Yes, I have.
Q.
Have we gone over that together?
A.
Yes, we have.
Q.
Keeping that in mind, do you know of any reason whatsoever that
would prevent you from purchasing a handgun in Missouri?
A.
None that I know of.
MR. JAMISON: Nothing further for the witness,
your Honor.
THE COURT: Ms. Mortimer
CROSS-EXAMINATION
BY
MS. MORTIMER:
Q.
Mr. Petrie, you’ve made applications for transfers before; is
that correct?
A.
Yes.
Q.
Okay. Specifically, I guess you applied for one
October 5th of 2005, correct?
A.
I do not know that date for certain, but I do know I have applied
in the past before.
Q.
Approximately how many times have you applied in the past?
A.
Maybe five. I’m not certain of that number.
Q.
And you have, with the exception on one other occasion on those, I
guess, four other applications, you have answered all the questions;
isn’t that correct?
A.
I’m not certain of that.
Q.
Do you have any reason to believe that you haven’t answered the
questions?
A.
I’m sorry?
Q.
Do you have any reason to believe that you have not answered the
questions on prior applications?
A.
I have not answered all the questions on prior applications before.
Q.
So, on perhaps one application; is that correct?
A.
I’m not certain.
Q.
In fact, you applied for a permit after this application which was
dated June 25th of 2006; isn’t that correct?
A.
I believe so.
Q.
And you answered all the questions on that application, didn’t
you?
A.
I believe so. I’m not certain.
(Defendant’s Exhibits 1, 2,
and
3 were marked for identification.
Q.
(By Ms. Mortimer) Mr. Petrie, I’m going to
hand you now what’s been marked as Defendant’s Exhibits No. 1, 2, and
3, and just ask if you can look at those for me briefly.
A.
Sure. (Witness complies.)
Q.
Do you recognize Defendant’s Exhibits 1, 2, and 3?
A.
Yes.
Q.
And, specifically, I guess, are Defendant’s Exhibits No. 1, 2,
and 3 copies of applications that you had made for an application to
transfer a handgun with the Sheriff’s Department prior to you
application that is the subject of this court order here today; is that
correct?
A.
No. This one is dated afterwards. Here’s
the application date.
Q.
This one looks like October 5th of 2005?
A.
October – yes. Oh, I’m sorry, my error,
wrong year.
Q.
So, all three of these are applications that you filed with the
Sheriff’s Department prior to the –
A.
I believe so.
Q.
And in all of those, Defendant’s Exhibits No. 1, 2, and 3, you
did answer all the questions; is that correct?
A.
It appears so with the exception to the question on the top back of
the page, “If you have answered ‘yes’ to questions 5, 6, 7, 8 and
9”, not applicable.
Q.
So, it was not applicable because you believe –-
A.
Because I did not.
Q.
-- it authorized –-
A.
I did not answer those questions.
Q.
And, Mr. Petrie, with regard to the application that was filed with
the Sheriff’s Department on June 25th, 2006, this is actually
the reason we are here today; is that correct?
A.
Yes.
Q.
And you indicated on direct testimony with your attorney that you
didn’t sign an authorization for medical release, or release, which is
on the second page because it was your belief that it authorized the
Jackson County Sheriff’s Department to access all your medical records?
A.
I believe so.
Q.
Could you explain to the Court why you believe this authorization
would allow the Sheriff’s Department to access all your medical records?
MR. JAMISON: Objection, your Honor, calls for
legal conclusion.
THE COURT: Overruled.
A.
I believe it says, “any medical records maintained by the U.S.
Department of Veterans Affairs.” I believe it says “to the Sheriff’s
Department.” “Further authorizes the disclosure and release of any
records maintained regarding the applicant to the Probate Division of the
Circuit Court of Jackson County, Missouri. This release further authorizes
the disclosure of medical information and records maintained by the U.S.
Department of Veterans Affairs. This authorization is
for the sole purpose of permitting the Sheriff’s Department to perform
its responsibilities pursuant to Section 571.090, and subject to the
requirement that the employees of the Sheriff’s Department are obligated
to keep such information confidential. Application
further authorizes said Sheriff’s Department to search Criminal Justice
System records regarding the applicant.”
Q.
This authorization and release mentions in there, “maintained
regarding the applicant by the Missouri Department of Mental Health”,
does it not?
A.
Yes.
Q.
Based upon that –
A.
But it’s also based upon your interpretation. I
also believe that would authorize the Sheriff’s Department to obtain all
our medical records, including and not limited to dental records.
I believe it could include that because it says, “Missouri
Department of Mental Health and its agents or employees or any other
provider of psychiatric care.” They are very loose
terms. I don’t know how the Sheriff’s Department
interprets it, but I believe “any” means “any”.
Q.
And, Mr. Petrie, it is your belief that -– and I guess you have
applied in the past and obtained a permit for a handgun -– you qualify?
A.
It’s pretty clear that I qualify, I believe.
Q.
Even if you answered questions 10, 11, and 12, which you have done
in the past, you qualify?
A.
I was informed by the Jackson County Sheriff’s Department that if
I answered all of the questions on the application I would qualify.
Q.
And you’ve done that in the past?
A.
Yes, I believe I have.
Q.
And, in fact, you’ve done that since that application dated June
25th of 2006, correct?
A.
Only because I had a firearm that I returned under warranty, and it
was being held by a dealer at a cost to me, and since I needed it back,
without having to spend a significant amount of money for him to hold it,
I decided to answer all of the questions because that’s the only way I
could get it back.
MS. MORTIMER: No further.
THE COURT: Mr. Jamison.
REDIRECT
EXAMINATION
BY
MR. JAMISON:
Q.
Well, you just spent five minutes or so, and we haven’t gotten --
the learned attorney for the Sheriff’s Office didn’t ask you the final
question. What made you become so obstructionist now?
A.
Well, I believe that I have a right to my privacy, and when I
learned that they’re not supposed to be asking the questions, I was
shocked.
Q.
You learned that?
A.
I learned that.
Q.
All right, and how did you learn that?
A.
Well, I do a lot of reading. I’ve read your
book, for instance, and I’ve even read the statute on this and I think
it’s pretty clear.
Q.
So, it’s my fault, okay. My fault.
MR. JAMISON: Nothing further, your Honor.
MS. MORTIMER: No further questions, your Honor.
(Witness excused.)
THE COURT: Any further evidence?
MR. JAMISON: Petitioner rests, your Honor.
THE COURT: Ms. Mortimer?
MS. MORTIMER: Your Honor, the defendant will
call Sergeant Judy Farnsworth.
DEFENDANT’S
EVIDENCE
JUDY
FARNSWORTH, having been first duly sworn by the Judge, testified:
THE COURT: She was on my jury the last couple of
weeks.
DIRECT
EXAMINATION
BY
MS. MORTIMER:
Q.
Sergeant Farnsworth, would you state your name for the Court,
please?
A.
Judy Farnsworth.
Q.
And where are you employed?
A.
Jackson County Sheriff’s Office.
Q.
And in what capacity do you work for the Sheriff’s Office?
A.
I am a sergeant in charge of the communications unit.
Q.
How long have you worked for the Sheriff’s Department?
A.
Going on 24 years.
Q.
As a sergeant in charge with the communications department, what
are your job responsibilities?
A.
I monitor and supervise ten dispatchers. I also,
among other things, review and approve or deny permit to transfer
applications.
Q.
And that’s what we’re here talking about today, correct?
A.
That’s correct.
Q.
And are you familiar with Mr. Petrie?
A.
Yes, I am.
Q.
And would you just briefly describe for the Court, generally
speaking, what happens when someone comes in and files an application for
a transfer of a handgun?
A.
When they fill out the application it’s turned in to one of the
dispatchers. They tell the applicant it will take five
working days. Once they’ve got the application they
run the background check through the computer systems that we have
available to us, and if there is any problem with the application, then,
it comes to my desk to review.
Q.
And with regard to Mr. Petrie, he’s made numerous applications
with the Sheriff’s Department in the past; is that correct?
A.
Yes, he has.
Q.
And does Mr. Petrie qualify right now?
A.
Yes, he does. Yes, he does.
Q.
And he’s received the actual permit; is that correct?
A.
That’s correct.
Q.
For this particular reason, can you describe for the Court why you
denied this particular application that’s the subject of this hearing
here today, the application dated June 25th of 2006?
A.
I denied this permit because he did not answer questions 10, 11,
and 12, and he did not sign the authorization for release.
Q.
And with regard to questions 10, 11, and 12, specifically, what do
those address?
A.
It addresses the mental health issue – I’m sorry. It
addresses the restraining order issue. It addresses the
pleaded guilty to or convicted in any court in an offense involving an
offense of assault against an intimate partner or the child of an intimate
partner, and question 12 asks, “Have you answered all of the above
statements truthfully?”
Q.
With regard to the authorization for release, what typically, is
that authorization for release of?
A.
Mental health records to determine if there’s any problem with
his mental health.
Q.
How often do you actually seek medical records of an applicant?
A.
Not very often. When I know for a fact that
there has been an applicant who has mental health problems, either through
the computer system because there are some flags that we see, I may call
the mental health -– if I know there is a mental health facility
involved, I may call them. I have never requested
mental health records.
Q.
You indicated that through the computer there might be some flags.
That’s a law enforcement computer that you’re referring to?
A.
That is correct.
Q.
As far as you know, is there any court computer that you can look
at to see if there is any mental health history with regard to an
applicant?
A.
I have access to the State run system, the Department of Mental
Health system, through computers, but quite frankly, I’ve never used it.
Q.
With regard to the question involving numbers 10 and 11, the
domestic violence aspect and restraining order, specifically, if you know,
what law are you relying upon to ask those questions?
A.
The Federal law.
Q.
That being the Brady Handgun Violence Prevention Act?
A.
Yes, ma’am.
MS. MORTIMER: No further questions, your Honor.
THE COURT: Mr. Jamison?
MR. JAMISON: Nothing for the witness, your
Honor.
(Witness excused.)
THE COURT: Ms. Mortimer, anything further?
MS. MORTIMER: I have nothing further, your
Honor.
THE COURT: Mr. Jamison, anything that you wanted
to add?
MR. JAMISON: Your Honor, under 571.090, the
legislature has said that the Sheriff shall ask only, and when it says
“shall ask only”, it’s extremely restrictive. In
fact, the last line of the statute says that violation is a misdemeanor,
Class A Misdemeanor.
Now, we’re not asking the Sheriff’s Department to be arrested
here; we’re asking that the Sheriff be required to comply with the law.
Now, the Federal law prevents a person convicted of domestic
violence from getting firearms. People convicted of
domestic violence are in the computer, and so, by the defendant’s own
witness, these questions are not only illegal, they’re unnecessary, and
we ask that my client be granted the permit to acquire.
THE COURT: Ms. Mortimer?
MS. MORTIMER: Your Honor, with regard to –
I’ll address these individually. With regard to the
refusal to sign the authorization for release, the Court can full well
read what’s listed in this authorization for release. It
specifically addresses records regarding the Department of Mental Health.
It does not authorize the Sheriff’s Department to go on a fishing
expedition through all of an applicant’s medical records.
Furthermore, your Honor, this specific issue has been addressed by
the Missouri Court of Appeals in the case of Paul Heidbrink v. Tim Swope,
St. Charles County Sheriff, 170 SW3d 13, where the Court of Appeals
specifically said it is not incumbent upon the Sheriff’s Department to
go searching for these things. An applicant has a duty
to cooperate in the investigation to obtain a permit, and I believe this
involves a concealable firearm permit, but the statutes generally read the
same. With regard to Mr. Petrie’s refusal to answer
questions 10 and 11, those very questions are addressed in Federal law,
the Brady Handgun Violence Prevention Act, Title 18, Section 922, and your
Honor, it specifically states that someone who is convicted of a crime in
any court, of a misdemeanor crime of domestic violence, that they cannot
obtain a permit. It also says, your Honor, that the law
of the State provides that such a permit is to be issued only after an
authorized government official has verified that the information available
to such official does not indicate that possession of a firearm by such
person would be in violation of the law, specifically allows the
Sheriff’s Department, in fact, implores the Sheriff’s Department to do
a valid search, and these questions are legitimate.
With regard to Mr. Petrie, he’s answered these questions in the
past, he didn’t have any problem. He since answered
the questions on an application that was made subsequent to the one
we’re here talking about today.
Your
Honor, Mr. Petrie qualifies. If he answered the
questions he qualifies. I think he’s just using this
as a place to disagree with an application, and I think the application is
lawful, and he should be compelled to answer those questions as he’s
done in the past in order to obtain the transfer permit.
THE COURT: Anything else?
MR. JAMISON: Your Honor, yes, he’s answered
these questions in the past, and then, some silly person told him what his
rights were. So, he wants to have his rights upheld.
This is not an unreasonable position. He filled
one out completely since because a gun was sitting in a dealer’s shop,
he was being charged storage. Rather than spend extra
money while this case went to the Court, he filled out the complete
application.
The Brady Act requires that nobody who has been convicted of
domestic violence gets to purchase a gun of any kind; rifle, shotgun,
carabine, pistol. It’s in the computer. It’s
in the law enforcement computers. When you go to the
NICS System, the Federal Government has its very own computers through the
FBI that kicks out anybody who applies, who’s been convicted of
anything. They’ve got bigger computers than we do.
Regardless, the Brady Act does not say that a Sheriff is required
to ask these questions, and this is fortunate because our legislature has
specifically said the Sheriff cannot ask these questions. It
says, “shall ask only”, and then, specifically lists what questions
can be asked, and this was put into the law, well, within my career,
because some sheriffs went too far afield in their questioning, and the
legislature made a specific, conscientious decision to limit how far
afield they can go.
Now, regardless of the scope of the authorization to release, the
law does not allow the Sheriff to ask the questions. Now,
if it’s a good idea or a bad idea, that’s something for the
legislature to decide. Under the law as it is right
now, the Sheriff cannot ask this question.
THE COURT: Will somebody be so kind as to hand
me that? Okay. Anything else anybody
wants to add?
MR. JAMISON: No, sir.
MS. MORTIMER: No, your Honor.
THE COURT: Give me a couple of seconds and let
me go back and do a couple things. I’ll be back in a
few minutes.
(Recess.)
THE COURT: Okay. I’ve had a
chance, obviously, to look at these statutes and the law and read what was
provided and review the case law that was provided and review Mr.
Petrie’s application. After reviewing all that, Mr.
Petrie, I respect and admire your right and your desire to question the
scope of the Sheriff’s authority, and I think you have the absolute
right to do that. You seem like an intelligent,
thoughtful, young man without a doubt, and while I understand your
reasoning and your taking issue with some of the things that are contained
on the application, I’m going to deny your request to overturn the
Sheriff’s denial of that application, and I guess my reasoning boils
down to this: I don’t question your forthrightness.
I don’t question your honesty. I don’t
question your willingness to correctly and honestly and faithfully and
fully answer the questions on these applications. I
think that there are those out there that would not be as forthright as
you and I think there are those out there that would not be as forthcoming
with information as you, and for those reasons I think these questions
and, specifically, this authorization for release of information as
contained in this application -- and I may be wrong, but I think the
authorization for release of information creates a scenario that is less
than forthright and it is an indication that there may be some further
investigation into the background of information that would allow them to
do that and I think they have a right and a duty to do so. If
there is an indication that is worth investigation, if investigation is
necessary, authorization for release of information allows them to do
that.
For the citizens who have nothing to hide, I think maybe you are
right, maybe it is over-reaching, maybe there are too many questions for
those of us who abide by the law and, you know, have no issues to hide.
My difficulty is with those that are less than forthright and do
indeed have something to hide and are trying to get a handgun, and I think
it was because of those individuals, unfortunately, that the extra steps
need to be taken and, again, I may be wrong, and you can tell me that I am
wrong, but I think to ask for justification is protection to us from those
that are less than forthright, those that are not like you, Mr. Petrie,
willing to -– having on your prior and your subsequent application been
forthright and forthcoming with information.
Again, I don’t blame you for taking issue with this. Again,
that’s your right to do so and, again, you seem like an articulate,
thoughtful, intelligent young man. That’s quite
obvious from hearing you testify from the stand, but because of those
protections that I think are needed, I think the application as it stands
is appropriate, and so, on that basis I’m going to deny your request.
Does that make sense to you, Mr. Petrie?
MR. JAMISON: No, your Honor, it does not.
We would ask for leave to withdraw our exhibits.
THE COURT: Ms. Mortimer, can you provide me with
a judgment?
MS. MORTIMER: Yes, I can, your Honor, in the
next day or two if that’s appropriate.
THE COURT: Mr. Petrie, good luck to you.
Thank you.
MR. PETRIE: My pleasure.
(End of proceedings.