Concealed Gun Law Under Fire in Alaska Case

Judge Natalie Finn didn’t hesitate to take away Timothy Wagner’s permit to carry a concealed handgun after hearing that he believes there’s a computer chip implanted in his head and that he’s been injected with deadly chemicals.

But a state appeals court ruled recently that Finn erred. The court declared that under Alaska law, mental illness by itself cannot be considered in deciding fitness to carry a concealed weapon. And state officials say they are trying to figure out how they could turn Wagner down if he asks to have his permit returned.

The case has caused a stir among some who say it demonstrates excessive zeal by Alaska’s Legislature to protect the right to bear arms. Advocates of gun rights, however, contend that the state law could prevent arbitrary government action against gun owners, and that sufficient protections remain for the public.

The case began Oct. 7, 1998, when Wagner entered the Alaska Mining & Diving store in Anchorage and an employee noticed that he was dripping wet.

Wagner told the clerk that he was wet because he was trying to soak chemicals from his body before “they” killed him. He also said a computer chip had been implanted in his head. Another employee overheard the conversation and called police.

An officer arrived and questioned Wagner outside the store. A background check revealed that Wagner had a permit to carry a concealed handgun, and the officer asked Wagner if he had a gun with him. Wagner pointed to a briefcase next to him. In it was a loaded .357 handgun and several bags of bullets.

Alaska law requires permit holders who come in contact with police to tell officers immediately if they are carrying a concealed gun. Wagner was convicted of failing to do so.

On Sept. 20, 1999, Finn sentenced Wagner to three years probation. She ordered him not to possess guns during probation. And she ordered him to forfeit his concealed-gun permit until his mental illness was “either cured or improved.” Based on her decision, the Department of Public Safety later revoked Wagner’s permit and denied his appeal of the action.

A state appeals court upheld Wagner’s conviction and sentence, including the condition that he not carry a gun while on probation. But it also ruled that Finn was wrong to take away his permit. The appellate judges cited changes in the law enacted in 1998 that restricted the role of mental illness in deciding whether someone was qualified for a concealed gun permit.

The law now requires Alaska applicants to disclose whether they have ever been found mentally incompetent by a court or been committed to a mental hospital. Those requirements were taken from the federal Gun Control Act of 1968.

But the old state law went beyond federal law. It also asked whether the applicant was mentally ill or had been treated for mental illness in the past five years. The 1998 change deleted those questions.

“They weakened the law,” said Nancy Hwa, spokeswoman for the Brady Campaign to Prevent Gun Violence. “They are taking away the discretion of local law enforcement to make these decisions in the best interest of public safety.”

Dean Guaneli, Alaska’s chief assistant attorney general, said the law as it stands now flouts common sense.

“In this case, the person is delusional,” he said. “When you have difficulty discerning reality from fantasy, that should bear on the decision of whether to bear arms.”

Bob King, spokesman for Alaska Gov. Tony Knowles, said the case realizes the fears that Knowles had in June 1997 when he vetoed the Legislature’s attempt to change the concealed gun law. Lawmakers overrode the governor’s veto and the bill became law in 1998.

The governor said in a letter at the time: “I believe the bill sweeps too broadly and as a result allows people who are potentially dangerous to obtain or keep a permit to carry a concealed handgun. . . . People who are mentally ill and under medication, although not formally institutionalized, may obtain a permit.”

King said the state is obliged to follow the new law.

“I’m not sure there is anything the state can do at this point about it,” he said.

NRA Representative Dismisses Legal Issue

But Brian Judy, the Alaska liaison for the National Rifle Assn., said the case does not show any flaw in the gun law.

The state is free to go to court, where a judge could declare Wagner incompetent or commit him, Judy said.

“The guy sounds, without a doubt, delusional,” Judy said. “Now, society, law enforcement, just about everybody knows about this guy.”

Joseph Nava, a firearms instructor and gun-rights advocate who lives on NRA Lane in Fairbanks, agreed, saying the 1998 changes made requirements for carrying a concealed gun clear.

“I don’t want to give the Department of Public Safety any discretion. I want the rules to be black and white,” Nava said.

Republican state Sen. Lyda Green, who sponsored the 1998 law, said Alaska law was changed to make it consistent with federal law. The changes also reduced the likelihood that someone could unjustly smear a gun owner with a claim of mental illness and cause that person to lose a carry permit.

The current law provides the state with an avenue for dealing with Wagner, she said.

“The court still has the ability to rule that ‘You can’t carry,’ ” Green said. “Now, he should be adjudicated.”

Efforts by Associated Press to reach Wagner were unsuccessful.

In the meantime, the Department of Public Safety is taking a wait-and-see attitude. Wagner hasn’t asked for his permit back and no court has ordered it returned, said Del Smith, the department’s deputy commissioner.

Will Cross That Bridge When They Come to It

If he asks, the department might be able to argue that Wagner can’t handle a gun safely, Smith said. The application does ask if the applicant has a physical infirmity that would prevent the safe handling of a handgun.

“I think Finn was concerned about his behavior, and rightly so,” Smith said. “He made some pretty bizarre claims.”

The Department of Public Safety said it has issued 18,000 concealed weapons permits since 1995.