Application of Hoffman

430 N.W.2d 210, 1988 Minn. App. LEXIS 979, 1988 WL 58693
CourtCourt of Appeals of Minnesota
DecidedOctober 11, 1988
DocketC8-88-720
StatusPublished
Cited by2 cases

This text of 430 N.W.2d 210 (Application of Hoffman) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Application of Hoffman, 430 N.W.2d 210, 1988 Minn. App. LEXIS 979, 1988 WL 58693 (Mich. Ct. App. 1988).

Opinions

OPINION

RANDALL, Judge.

Respondent Timothy John Hoffman applied for a permit to carry a handgun in a public place, pursuant to Minn.Stat. § 624.714, subd. 5 (1986), in May 1987. His application was initially denied, as Hoffman had not obtained a firearm safety certificate as required by section 624.714, subdivision 5(b). Hoffman obtained his safety certificate and applied again. This application was granted, and a permit was issued. The permit was revoked two days later by the Mankato Department of Public Safety on the ground that Hoffman had failed to show a need for the firearm permit. Hoffman surrendered his permit to the Mankato Department of Public Safety pending court action.

Pursuant to section 624.714, subdivision 12, respondent Hoffman appealed the denial of his permit to the Blue Earth County District Court. Following a hearing, the [211]*211district court directed issuance of the handgun permit. The City of Mankato has appealed. We affirm.

FACTS

Respondent Timothy John Hoffman is a security guard employed by American Security and Protection Inc. (ASP). Pursuant to a contractual agreement between Me-nard’s and ASP, he works as a security guard for the Menard’s retail store and lumberyard in Mankato. As a specific condition of his employment with ASP, Hoffman is required to have a permit to carry a handgun.1

Hoffman first applied for this permit on May 21, 1987. His application was denied because he did not have a firearm safety certificate required by Minn.Stat. § 624.714, subd. 5(b). Following successful completion of a safety course given by an officer of the Mankato police force, Hoffman received his firearm safety certificate and applied for a handgun permit for the second time on October 14, 1987. The permit was issued on October 20. Two days later, however, his permit was revoked by the Mankato Department of Public Safety. The revocation letter stated that “the functions performed for American Security and Protection Company, while working for Me-nard’s Lumber in Mankato, does not meet the established criteria required for carrying of a handgun.” Hoffman surrendered his permit and appealed to the Blue Earth County District Court.

The statute governing handgun permits reads as follows:

No permit to carry shall be granted to a person unless the applicant:
(a) Is not a person prohibited by section 624.713 from possessing a pistol;
(b) Provides a firearms safety certificate recognized by the department of natural resources, evidence of successful completion of a test of ability to use a firearm supervised by the chief of police or sheriff or other satisfactory proof of ability to use a pistol safely; and
(c) Has an occupation or personal safety hazard requiring a permit to carry.

Minn.Stat. § 624.714, subd. 5. The parties agree that Hoffman has met the first two requirements of this statute. The revocation of his permit to carry was based on a determination by the Mankato Director of Public Safety that Hoffman does not have an occupation or personal safety hazard requiring a permit to carry.

In denying Hoffman’s permit, Glenn Gabriel, the Director of Public Safety for the City of Mankato, relied on four criteria developed by the Mankato Department of Public Safety. These criteria are:

1. Whether the applicant has duties exposing him to the likelihood of great bodily harm or death.
2. Whether the applicant has responsibility for guarding cash or liquid assets.
3. Whether the applicant is likely to be kidnapped, robbed or extorted.

[212]*2124. Whether the presence of a firearm is a greater threat to safety than its absence.

These criteria have not been formally adopted, are not published, are not made available to the public, and applicants for handgun permits are not made aware that their application will be reviewed against these criteria.

At the district court hearing on Hoffman’s application, Warren R. Johnson, the vice president and corporate secretary of Menard’s, testified that Menard’s has a longstanding written policy requiring that security guards at store locations carry handguns. The policy was originally intended to prevent theft and robbery. Since Menard’s began employing armed security guards, the company has not had an armed robbery at any of its stores in the five-state area. Johnson believes Menard’s experience has proven the deterrent effect of armed guards.

The court also heard testimony on the duties of security guards at the Mankato store. A guard is stationed at a guard shack outside the main building, approximately 100 yards from the cashiers. The guard shack is located at the gate to the outside lumber yard. The guards’ duties are to check persons and vehicles going into the lumber yard; check loads, vehicles and persons leaving the lumber yard and record their license numbers; and check and secure the building at approximately 3:00 a.m. The court also heard from Thomas Totland, supervisor of security for ASP at Menard’s in Mankato. According to Tot-land, three guards presently working at Menard’s, who live outside the City of Man-kato, have been able to obtain handgun permits from the Blue Earth County Sheriff. Hoffman, as well as another security guard who lives in the City of Mankato, have beep denied permits by the Mankato chief of police.2

The last witness to testify was Lawrence May, a private detective associated with American Security Corporation in St. Paul. May, who has 29 years of security experience, testified that he was aware of no other retail setting with armed guards, except Menard’s. According to May, the standards of the American Society of Industrial Security provide that security personnel should be armed only when it is probable that weapons will be necessary to resist actual or threatened fatal force against the person to whom the firearm has been issued or against another person whom the security guard is under a duty to protect. May does not assign armed personnel from his security to retail settings. In fact, American Security Corporation has refused to provide armed guards for Me-nard’s.

Based on the evidence at the hearing, the district court ordered the Mankato Department of Public Safety to issue the handgun permit to Hoffman. The district court reasoned that Hoffman has an occupation requiring a permit to carry. This determination was based on Hoffman’s testimony that obtaining a permit to carry a handgun was, and continues to be, a condition of his employment. Since Hoffman is required to carry a handgun in order to remain employed, the district court reasoned he has an occupation requiring a permit to carry.

The trial court, not as part of its holding but as a general observation, stated that although it felt Hoffman was entitled to the handgun permit, the court believed that Menard's policy regarding armed security guards was unreasonable. The court stated further that “the policy of Menard’s is not relevant to this proceeding, and this observation has been added only to inform petitioner and Menard’s that petitioner has not made an objective showing of a need for a handgun permit.”

The City of Mankato appealed the order directing the Department of Public Safety to issue a handgun permit to Hoffman. [213]

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Related

In Re Gun Permits of Preis
573 A.2d 148 (Supreme Court of New Jersey, 1990)
Application of Hoffman
430 N.W.2d 210 (Court of Appeals of Minnesota, 1988)

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Bluebook (online)
430 N.W.2d 210, 1988 Minn. App. LEXIS 979, 1988 WL 58693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/application-of-hoffman-minnctapp-1988.