Underwood v. Nebraska State Patrol

Summary

The Nebraska Supreme Court affirmed the denial of Tony Underwood’s application for a concealed handgun permit. The court held that a conviction for attempted third-degree sexual assault of a child constituted a misdemeanor crime of violence under Neb. Rev. Stat. § 69-2433(5), disqualifying Underwood from obtaining a permit.

Holdings

1. For purposes of Neb. Rev. Stat. § 69-2433(5), the disqualification arises from the fact of conviction, and the court determines whether the offense is a crime of violence by examining the elements of the statutes underlying the conviction rather than the particular factual details of the offense.
2. An attempt to commit third degree sexual assault of a child is a misdemeanor crime of violence under Neb. Rev. Stat. § 69-2433(5). An attempt to commit a crime of violence is itself an act of violence for purposes of the Concealed Handgun Permit Act.

Questions Presented

1. Whether the Nebraska Supreme Court should examine the underlying factual details of the conviction or the statutory elements of the offense when determining whether an applicant has been convicted of a misdemeanor crime of violence under Neb. Rev. Stat. § 69-2433(5).
2. Whether attempted third degree sexual assault of a child constitutes a misdemeanor crime of violence under Neb. Rev. Stat. § 69-2433(5), thereby disqualifying Underwood from obtaining a concealed handgun permit.

Disposition

affirmed