Lawsuit critical of Mecklenburg sheriff over concealed-weapon permits can proceed

Gun-rights groups can move forward in a lawsuit against Mecklenburg County Sheriff Garry McFadden over claims that he has slow-walked the concealed handgun permit process, a federal judge says.

A November complaint alleged that the sheriff has delayed granting permits by making “numerous irrelevant mental health records requests” to agencies, including the U.S. Department of Veterans Affairs.

North Carolina is a shall-issue state, meaning that sheriff’s offices are supposed to issue permits to applicants who meet requirements. One of those requirements involves a mental health check.

“Yet what takes other North Carolina sheriffs days or weeks to accomplish, Sheriff McFadden drags out for anywhere from many months to over a year,” a Dec. 12 document filed by the plaintiffs says.

Originally challenging McFadden, his office, state Attorney General Josh Stein and North Carolina’s mental health provisions themselves, the lawsuit now names the sheriff as the sole defendant.

Disagreeing with those suing, federal District Court Judge Max Cogburn in an Aug. 1 opinion said that North Carolina’s mental health statutes are consistent with the country’s “historical treatment of firearm regulation,” and that they are not unconstitutional by default.

On a claim that McFadden’s way of conducting those mental health checks could be unconstitutional, Cogburn allowed the case to move into a discovery phase, when parties in the dispute are obliged to exchange information.

McFadden has done nothing wrong, lawyers representing him in court filings have said. Instead, he is ensuring that it’s safe for applicants to carry a concealed handgun, as is required by state statute, they argue.

“The Sheriff cannot control how long it may take any given mental health provider to return the requested records, but so long as the Sheriff issues or denies the CHP within forty-five days of receiving those records, the Sheriff is in compliance with the law,” they wrote.

What’s alleged

“The sheriff may conduct any investigation necessary to determine the qualification or competency of the person applying for the permit, including record checks,” state law says.

Mecklenburg County residents Sara Beth Williams, Bruce Kane and Jason Yepko waited months or more than a year to get a concealed handgun permit or a renewal, according to court filings. Their waits included especially long mental health checks, they allege.

Other plaintiffs include Gun Owners of America, Gun Owners Foundation, Grass Roots North Carolina and Rights Watch International.

Williams saw on the online application portal for her permit that, at one point, the sheriff’s office was waiting on mental health records from the VA, according to the lawsuit.

“However, I do not and have never had mental health problems,” she wrote. “Nor have I ever served in the military, and thus am not a veteran. And while my father did serve in the military, I have not been a dependant of his for almost 25 (twenty-five) years.”

Plaintiffs in December asked the court to order McFadden to speed up the process. Before a judge ruled, they received their permit and renewals.

The lawsuit can continue, however, giving plaintiffs a chance to make a case that McFadden’s practices infringe Second Amendment rights.

“What we hope is that the sheriff will be forced to comply with the law,” Grass Roots North Carolina President Paul Valone told The Charlotte Observer.

One defense for McFadden in the court filing states that it’s vital to confirm that permit applicants don’t lie.

“For example, a recent applicant indicated that he had never served in the military, but VA records showed that not only had the applicant served (and thereby qualified for treatment at the VA), he had also attempted suicide on multiple occasions and threatened physically to harm VA employees at a VA facility,” McFadden’s attorneys wrote.

The plaintiffs have said that there is a faster way to get the same information.

Gun groups have sued before

This is not the sheriff’s first challenge from Gun Owners of America, Gun Owners Foundation, Grass Roots North Carolina and Rights Watch International.

They sued him in 2021, alleging that he dawdled fingerprinting applicants for pistol permits by making them schedule an appointment. In May 2022 a judge ordered him to take walk-ins and provide fingerprinting within five days.

“This is actually the fourth lawsuit we’ve filed against sheriffs,” Valone, the president of Grass Roots North Carolina, told The Observer.

That group in 2020 sued then-Wake County Sheriff Gerald Baker for pausing issuing gun permits during the COVID-19 pandemic. A judge ordered him to resume processing them in “as timely a fashion as possible under the current conditions,”

On its website, Grass Roots North Carolina cites its work to affect state politics, as well as policies. Its Political Victory Fund “was central” to electing two North Carolina Supreme Court justices and “securing conservative control of the Court,” it claims.

McFadden’s lawyers accuse the plaintiffs in the current lawsuit of “pushing an activist agenda” to strike down North Carolina’s statutes requiring citizens to obtain permits to carry concealed weapons, in court filings.

Ronald Shook, a Gastonia-based attorney representing the gun groups, told The Observer that the lawsuit is not partisan.

“It’s not a Republican or Democrat issue,” he said. “People across the spectrum, all sides of the political aisle and races and creeds are being affected by this equally. Everybody’s Second Amendment is the same. And he’s infringing on every citizen of Mecklenburg County’s Second Amendment rights.”

Bradley Smith, a spokesperson for McFadden, said neither the sheriff or the sheriff’s office comments on pending litigation.