Mike
Site Co-Founder
imported post
See below - does anyone have In re Austin handy? I'd like to post that Appeal Court slam dunk of Freeman here at OCDO.
--
http://www.tricities.com/tristate/tri/news.apx.-content-articles-TRI-2008-0=4-21-0011.html
http://tinyurl.com/4alshg
Judge criticized over gun permit denials
Monday, Apr 21, 2008 - 12:57 AM
BY Daniel Gilbert
Reporter
ABINGDON, Va. =96 Bill Hubble's military discharge papers from 1947 did
not pass muster for demonstrating competency with a handgun, a Smyth
County circuit court judge ruled in November 2006.
It was not the first time that Judge Isaac St.C. Freeman had denied a
concealed handgun permit to an honorably discharged veteran, even
though such status qualifies an applicant for a permit under Virginia
law.
In the last year, two of Freeman's rulings on concealed weapons
permits have been repudiated by a higher court and by legislators who
last month passed a bill clarifying the state code. One lawmaker
lodged a formal complaint with the Virginia Supreme Court about
Freeman's demeanor and rulings.
It was Hubble, 78 years old when he applied for a permit, who
precipitated the legislative inquiries that tacked on eight words to
the state code =96 which become effective in July.
Hubble had hoped to settle things by meeting with Freeman, but after a
testy encounter in which the judge stood by his ruling, Hubble got on
the phone to state lawmakers.
Among those he called was state Delegate Joseph P. Johnson Jr., an
Abingdon Democrat who himself had been honorably discharged from
military service.
"A discharge is a discharge, and the law is the law," Johnson said in
a telephone interview.
The Code of Virginia lists proof of an honorable discharge as one of
the standards for demonstrating competency with a handgun and states
that "no applicant shall be required to submit to any additional
demonstration of competence."
"In the code and the law, it's acceptable," said Johnson. "I don't
know for what reason it was not acceptable" in Hubble's case, he said.
Calling Freeman's ruling a "misinterpretation, maybe," Johnson
introduced a bill adding the following language: "nor shall any proof
of demonstrated competence expire."
Hubble, a tall, snowy-haired octogenarian, said: "It shouldn't have
had to go through the legislature. It's my right as a citizen."
"I will not accept it"
The tiff that eventually reached the General Assembly began with a
letter Freeman wrote on Aug. 22, 2006, in response to Hubble's
application.
"Dear Mr. Hubble," Freeman wrote, "You must complete a proper
handgun/weapon course before I will sign your application. ... The
proof of training you submitted was a discharge from the U.S. Navy,
which occurred in December of 1947. I will not accept it."
A week later, Hubble arrived without an appointment at the Washington
County Courthouse hoping to speak with another judge about the issue.
He met with Freeman.
Freeman did not respond to interview requests for this article or to
written questions submitted to his secretary.
But some basis for Freeman's rulings can be gleaned from court
records, in which the judge also wrote an account of his meeting with
Hubble.
In Freeman's version, Hubble refused to take another weapons course
and threw the judge's letter at him.
"He got very angry, threatening to go as far as he could =96 regardless
of the cost =96 to get me," Freeman wrote in a note in Hubble's court
file.
Hubble reviewed and disputed that account, calling it "completely and
totally untrue."
In November 2006, Freeman denied the permit, noting that Hubble "has
not demonstrated competency."
Several months earlier, Freeman had given similar instructions to an
Army veteran who submitted his discharge papers as proof of
competency.
"You will need to submit an updated certification exhibiting your
competency with a handgun," Freeman wrote to Jefferson Dale Baldwin
Sr. on May 26, 2006.
Both the Smyth County sheriff and commonwealth's attorney had signed
off on his application, and Baldwin was stunned by Freeman's letter.
"Every county that I know of around us honors an honorable discharge,"
Baldwin, 80, said in a telephone interview. "But [Freeman] didn't. I
don't know what his problem is."
Baldwin opted to take a firearms course and his permit was granted the
following month. "There was no point in appealing. Not with that guy."
Kevin Austin, a 32-year-old emergency medical worker, took a different
tack when his application for a permit was denied, a month after
Hubble's was rejected.
Austin had submitted a certificate for a state-approved hunter
education course when he applied for a permit. The sheriff and
commonwealth's attorney found no disqualifying factors and added their
signatures to his application.
Freeman, however, demurred, noting that Austin completed the training
course 18 years ago =96 at age 13. "I do not consider it sufficient
proof of competency," he wrote to Austin in an October 2006 letter,
recommending the applicant take "an up-to-date course."
After Austin pressed the issue, citing the code section on competency,
Freeman again advised him to submit further proof. "Otherwise, I will
deny your application and allow you to proceed through the appeal
process," Freeman wrote on Nov. 16, 2006. He denied Austin's permit a
month later, indicating "failure by petitioner to demonstrate proof of
competency."
In explaining his rationale for denying the permit, Freeman appears to
conflate the legal required age for filing a permit =96 21 =96 with an
applicant's age at the time competency was demonstrated.
"He showed proof only that he took a hunter safety course before he
was 21 ... Petitioner must be 21 to make application," Freeman wrote.
Austin appealed the ruling, and in June 2007, the Virginia Court of
Appeals ruled in his favor, instructing the lower court to grant the
permit. In its opinion, the court noted that Austin had demonstrated
competency with a handgun and that none of the 20 disqualifying
criteria "involve the length of time between the petitioner's firearm
training and the application for a permit."
A pink Post-it note in Austin's court file, dated the day the appeals
court opinion was filed in Smyth County Circuit Court and bearing
Freeman's initials, reads: "Save this for Judge Kirksey or Judge
Lowe." He granted the permit the following month.
Questions of discretion
Judges infrequently deny concealed weapon permits, according to court perso=
nnel.
Washington County Clerk Patricia Phipps said two permits have been
denied so far this year out of about 300 applications received. Last
year, five out of 820 applications for permits were denied.
A clerk in Smyth County said that about 3 percent of applications are
rejected per year. The county granted 300 permits in 2007.
But gun-rights activists recall a time when denials were more common,
and the wording of the law much looser. Before the code was amended in
1995, the section on handgun permits left issuance to the judge's
discretion.
A bill introduced that year by former state Sen. and now U.S. Rep.
Virgil H. Goode Jr. struck language instructing judges to weigh an
applicant's character, demonstrated need for a concealed weapon, and
physical and mental competence in issuing a permit.
Philip Van Cleave, president of the Virginia Citizen's Defense League,
said that though the language is now much tighter, "we're forever
having these extralegal requirements."
Freeman's name "has popped up probably more than any judge," Van
Cleave said by phone.
Complaints about Freeman, he said, have ranged from his recent rulings
on handgun competency to requesting that an applicant interview with
him personally in 2005.
"Some of these far western counties seem to still be living in the
past," he said.
Freeman, though, is relatively new to the bench. He was appointed as a
general district court judge in 2003 and moved up to the circuit court
in 2005.
Before becoming a judge, Freeman had a general law practice in Marion
for 29 years. He graduated from Virginia High School and attended the
University of Tennessee in Knoxville, and worked from 1966 to 1971 as
an aide to former Congressman William C. Wampler Sr., father of the
currently serving state senator.
Freeman, who twice ran unsuccessfully for state office as a
Republican, said in an unrelated telephone interview last month that
he "never anticipated being a state judge, ever."
Legislators weigh in
In his short time on the bench, Freeman has generated what one
legislator described as "significant concerns."
Sen. Phillip P. Puckett, D-Lebanon, lodged a formal complaint against
Freeman with the state Supreme Court. In a letter to Chief Justice
Leroy Rountree Hassell Sr., Puckett wrote that Freeman "obviously is
holding these applicants to a higher standard than the Code of
Virginia requires, and is not following the law as required."
Puckett also criticized Freeman's judicial demeanor "with regard to
attitude, abuse of judicial power, and indifference to other
individual's opinions and concerns."
Delegate Johnson, who sponsored the bill on Hubble's behalf, supported
Freeman's appointment to the bench and has practiced in his court. He
said in an interview that he would not take a "Monday morning
quarterback view" and that Freeman "does a good job" as judge.
Delegate Charles W. Carrico Sr., R-Independence, said he spoke at
length with Freeman about handgun permits and also wrote him a letter
saying he found no "recency requirement for training" in the state
code.
"Therefore," Carrico wrote, "none should be interpreted."
Sen. William C. Wampler Jr., R-Bristol, who also supported Freeman's
nomination to the bench, wrote in support of Hubble, but declined to
comment on the case specifically.
Hubble, for his part, conceded that he does not really need a
concealed weapons permit. Once an avid bird hunter, he said he has not
bagged a grouse in years.
"A friend talked me into the durn thing," he said of his reasons for applyi=
ng.
But his resolve hardened, he said, " 'cause that guy told me I
couldn't have it."
On March 28, Hubble filed another application for a permit.
His court file is unusually thick for this type of civil case. In
addition to his application, there are letters of support from state
legislators and a sheriff, the Court of Appeals decision in Kevin
Austin's case, and the stapled text of House Bill 873, with its eight
italicized words.
See below - does anyone have In re Austin handy? I'd like to post that Appeal Court slam dunk of Freeman here at OCDO.
--
http://www.tricities.com/tristate/tri/news.apx.-content-articles-TRI-2008-0=4-21-0011.html
http://tinyurl.com/4alshg
Judge criticized over gun permit denials
Monday, Apr 21, 2008 - 12:57 AM
BY Daniel Gilbert
Reporter
ABINGDON, Va. =96 Bill Hubble's military discharge papers from 1947 did
not pass muster for demonstrating competency with a handgun, a Smyth
County circuit court judge ruled in November 2006.
It was not the first time that Judge Isaac St.C. Freeman had denied a
concealed handgun permit to an honorably discharged veteran, even
though such status qualifies an applicant for a permit under Virginia
law.
In the last year, two of Freeman's rulings on concealed weapons
permits have been repudiated by a higher court and by legislators who
last month passed a bill clarifying the state code. One lawmaker
lodged a formal complaint with the Virginia Supreme Court about
Freeman's demeanor and rulings.
It was Hubble, 78 years old when he applied for a permit, who
precipitated the legislative inquiries that tacked on eight words to
the state code =96 which become effective in July.
Hubble had hoped to settle things by meeting with Freeman, but after a
testy encounter in which the judge stood by his ruling, Hubble got on
the phone to state lawmakers.
Among those he called was state Delegate Joseph P. Johnson Jr., an
Abingdon Democrat who himself had been honorably discharged from
military service.
"A discharge is a discharge, and the law is the law," Johnson said in
a telephone interview.
The Code of Virginia lists proof of an honorable discharge as one of
the standards for demonstrating competency with a handgun and states
that "no applicant shall be required to submit to any additional
demonstration of competence."
"In the code and the law, it's acceptable," said Johnson. "I don't
know for what reason it was not acceptable" in Hubble's case, he said.
Calling Freeman's ruling a "misinterpretation, maybe," Johnson
introduced a bill adding the following language: "nor shall any proof
of demonstrated competence expire."
Hubble, a tall, snowy-haired octogenarian, said: "It shouldn't have
had to go through the legislature. It's my right as a citizen."
"I will not accept it"
The tiff that eventually reached the General Assembly began with a
letter Freeman wrote on Aug. 22, 2006, in response to Hubble's
application.
"Dear Mr. Hubble," Freeman wrote, "You must complete a proper
handgun/weapon course before I will sign your application. ... The
proof of training you submitted was a discharge from the U.S. Navy,
which occurred in December of 1947. I will not accept it."
A week later, Hubble arrived without an appointment at the Washington
County Courthouse hoping to speak with another judge about the issue.
He met with Freeman.
Freeman did not respond to interview requests for this article or to
written questions submitted to his secretary.
But some basis for Freeman's rulings can be gleaned from court
records, in which the judge also wrote an account of his meeting with
Hubble.
In Freeman's version, Hubble refused to take another weapons course
and threw the judge's letter at him.
"He got very angry, threatening to go as far as he could =96 regardless
of the cost =96 to get me," Freeman wrote in a note in Hubble's court
file.
Hubble reviewed and disputed that account, calling it "completely and
totally untrue."
In November 2006, Freeman denied the permit, noting that Hubble "has
not demonstrated competency."
Several months earlier, Freeman had given similar instructions to an
Army veteran who submitted his discharge papers as proof of
competency.
"You will need to submit an updated certification exhibiting your
competency with a handgun," Freeman wrote to Jefferson Dale Baldwin
Sr. on May 26, 2006.
Both the Smyth County sheriff and commonwealth's attorney had signed
off on his application, and Baldwin was stunned by Freeman's letter.
"Every county that I know of around us honors an honorable discharge,"
Baldwin, 80, said in a telephone interview. "But [Freeman] didn't. I
don't know what his problem is."
Baldwin opted to take a firearms course and his permit was granted the
following month. "There was no point in appealing. Not with that guy."
Kevin Austin, a 32-year-old emergency medical worker, took a different
tack when his application for a permit was denied, a month after
Hubble's was rejected.
Austin had submitted a certificate for a state-approved hunter
education course when he applied for a permit. The sheriff and
commonwealth's attorney found no disqualifying factors and added their
signatures to his application.
Freeman, however, demurred, noting that Austin completed the training
course 18 years ago =96 at age 13. "I do not consider it sufficient
proof of competency," he wrote to Austin in an October 2006 letter,
recommending the applicant take "an up-to-date course."
After Austin pressed the issue, citing the code section on competency,
Freeman again advised him to submit further proof. "Otherwise, I will
deny your application and allow you to proceed through the appeal
process," Freeman wrote on Nov. 16, 2006. He denied Austin's permit a
month later, indicating "failure by petitioner to demonstrate proof of
competency."
In explaining his rationale for denying the permit, Freeman appears to
conflate the legal required age for filing a permit =96 21 =96 with an
applicant's age at the time competency was demonstrated.
"He showed proof only that he took a hunter safety course before he
was 21 ... Petitioner must be 21 to make application," Freeman wrote.
Austin appealed the ruling, and in June 2007, the Virginia Court of
Appeals ruled in his favor, instructing the lower court to grant the
permit. In its opinion, the court noted that Austin had demonstrated
competency with a handgun and that none of the 20 disqualifying
criteria "involve the length of time between the petitioner's firearm
training and the application for a permit."
A pink Post-it note in Austin's court file, dated the day the appeals
court opinion was filed in Smyth County Circuit Court and bearing
Freeman's initials, reads: "Save this for Judge Kirksey or Judge
Lowe." He granted the permit the following month.
Questions of discretion
Judges infrequently deny concealed weapon permits, according to court perso=
nnel.
Washington County Clerk Patricia Phipps said two permits have been
denied so far this year out of about 300 applications received. Last
year, five out of 820 applications for permits were denied.
A clerk in Smyth County said that about 3 percent of applications are
rejected per year. The county granted 300 permits in 2007.
But gun-rights activists recall a time when denials were more common,
and the wording of the law much looser. Before the code was amended in
1995, the section on handgun permits left issuance to the judge's
discretion.
A bill introduced that year by former state Sen. and now U.S. Rep.
Virgil H. Goode Jr. struck language instructing judges to weigh an
applicant's character, demonstrated need for a concealed weapon, and
physical and mental competence in issuing a permit.
Philip Van Cleave, president of the Virginia Citizen's Defense League,
said that though the language is now much tighter, "we're forever
having these extralegal requirements."
Freeman's name "has popped up probably more than any judge," Van
Cleave said by phone.
Complaints about Freeman, he said, have ranged from his recent rulings
on handgun competency to requesting that an applicant interview with
him personally in 2005.
"Some of these far western counties seem to still be living in the
past," he said.
Freeman, though, is relatively new to the bench. He was appointed as a
general district court judge in 2003 and moved up to the circuit court
in 2005.
Before becoming a judge, Freeman had a general law practice in Marion
for 29 years. He graduated from Virginia High School and attended the
University of Tennessee in Knoxville, and worked from 1966 to 1971 as
an aide to former Congressman William C. Wampler Sr., father of the
currently serving state senator.
Freeman, who twice ran unsuccessfully for state office as a
Republican, said in an unrelated telephone interview last month that
he "never anticipated being a state judge, ever."
Legislators weigh in
In his short time on the bench, Freeman has generated what one
legislator described as "significant concerns."
Sen. Phillip P. Puckett, D-Lebanon, lodged a formal complaint against
Freeman with the state Supreme Court. In a letter to Chief Justice
Leroy Rountree Hassell Sr., Puckett wrote that Freeman "obviously is
holding these applicants to a higher standard than the Code of
Virginia requires, and is not following the law as required."
Puckett also criticized Freeman's judicial demeanor "with regard to
attitude, abuse of judicial power, and indifference to other
individual's opinions and concerns."
Delegate Johnson, who sponsored the bill on Hubble's behalf, supported
Freeman's appointment to the bench and has practiced in his court. He
said in an interview that he would not take a "Monday morning
quarterback view" and that Freeman "does a good job" as judge.
Delegate Charles W. Carrico Sr., R-Independence, said he spoke at
length with Freeman about handgun permits and also wrote him a letter
saying he found no "recency requirement for training" in the state
code.
"Therefore," Carrico wrote, "none should be interpreted."
Sen. William C. Wampler Jr., R-Bristol, who also supported Freeman's
nomination to the bench, wrote in support of Hubble, but declined to
comment on the case specifically.
Hubble, for his part, conceded that he does not really need a
concealed weapons permit. Once an avid bird hunter, he said he has not
bagged a grouse in years.
"A friend talked me into the durn thing," he said of his reasons for applyi=
ng.
But his resolve hardened, he said, " 'cause that guy told me I
couldn't have it."
On March 28, Hubble filed another application for a permit.
His court file is unusually thick for this type of civil case. In
addition to his application, there are letters of support from state
legislators and a sheriff, the Court of Appeals decision in Kevin
Austin's case, and the stapled text of House Bill 873, with its eight
italicized words.
