Carrying While Committing Crimes

Last December, the Kansas Court of Appeals issued an interesting unpublished opinion in Bader v. Concealed Carry Licensing Unit. The dispute concerned Ryan Bader’s claim to a concealed carry handgun license. The state’s Concealed Carry Licensing Unit (CCLU) denied Bader a license because he had previously been convicted of attempted robbery, though Bader had the conviction expunged before he sought the license. (Fun fact: Bader was represented in the case by Kris Kobach, the former Kansas Secretary of State.) The case presents complex questions about statutory interpretation; highlights the creative ways that prosecutors, defense attorneys, and judges negotiate pleas to (try to) sidestep onerous collateral consequences; and even includes some appellate practice reminders (always cross-appeal an adverse ruling on an alternate ground entitling you to relief!).

Under Kansas law, the CCLU cannot issue a license if the applicant has been convicted of a felony offense and “was found to have been in possession of a firearm at the time of the commission of the crime.” Bader argued that the provision did not apply because he was not “found” to be in possession of a firearm during the court proceedings for attempted robbery. That conviction arose from an incident in which Bader took a taxi home and argued with the driver over the fare. He paid part of the fare, then walked into his house and returned with a handgun. When the driver started to call the police, Bader took the driver’s phone and put it on the roof of the taxi. After Bader when back inside, the driver grabbed his phone and called the police. The state charged Bader with aggravated assault for placing the driver in immediate fear of bodily harm with the gun. Bader reached a plea with prosecutors and the new, reduced charge agreed to was attempted robbery, and this time the prosecutors left the gun out of the charging documents. (I’m reminded here of a brilliant article Thea Johnson presented at Duke recently on “Lying and the Paradox of Plea Bargaining,” about the ways that pleas often evade the truth in service of better perceived outcomes.)

At the plea hearing, the trial judge asked for the factual basis for a plea of attempted robbery, and specifically what facts supported the “force of threat or bodily harm” element of the offense. The prosecutor noted that Bader had a handgun. Bader’s lawyer agreed, telling the judge that “he took the cell phone from the victim, and this was with—for purposes of the factual basis, it was with the possession of a firearm.” The parties recommended probation under the plea agreement and informed the judge that Bader would not have to register as a violent offender. (As Michael O’Hear documents, states have been creating mechanisms like violent offender registries as part of a series of escalating consequences for crimes categorized as “violent.”) Agreeing with the recommendation, the trial judge ordered probation and did not require Bader to register as a violent offender. On the journal entry of judgment, the box asking if the offense was committed with a deadly weapon is checked “no”—a “yes” would have required completing the offender registration supplement.

After finishing probation and getting his felony expunged, Bader applied for his concealed carry license. The CCLU determined that Bader’s offense precluded licensure because he had in fact possessed a firearm in the commission of the attempted robbery. After winding its way through administrative appeals, Bader sued in state court, arguing that the “finding” that a person possessed a firearm in committing a crime had to be made by the trial court at the time of the offense and not later. The state court agreed and ordered the CCLU to grant Bader a license. The Kansas Court of Appeals reversed. It concluded that the trial court in his attempted robbery case necessarily did find that Bader possessed the gun, because no other facts supported the charge. “Without the finding that Bader possessed a gun, there would not have been an adequate factual basis for the district court to accept Bader’s guilty plea to the crime of attempted robbery.” And that finding, the appellate court held, need not be a formal one to satisfy the statute barring Bader from getting a carry license. Nor did the trial court’s journal entry notation negate that finding. The trial court’s “decision not to require registration or use the special sentencing rule was an attempt to conform Bader’s sentence to the terms of the plea agreement.” (This is also consistent with research on mandatory minimums and other harsh penalties that confirms that system actors often find ways to circumvent what they view as punishment that doesn’t fit the crime, despite whatever discretion the legislature attempts to remove.)

Finally, the court declined to address Bader’s alternative argument that his expungement meant his offense no longer disqualified him because Bader did not cross-appeal the trial court’s ruling on the issue.