What Happens When Someone Is Denied Gun Based on Long-Ago Criminal Case, and the Underlying Court Records are Missing?

From Zundel v. City of Jamestown, handed down Thursday by the North Dakota Supreme Court (opinion by Justice Jerod Tufte):

… Thomas Zundel attempted to buy a firearm, but the purchase was denied when a background check using the National Instant Criminal Background Check System (NICS) revealed a 1990 simple assault charge in Jamestown Municipal Court. NICS showed the charge was continued for a year and Zundel was ordered to participate in counseling. NICS failed to confirm a conviction. Zundel filed a voluntary appeal of the NICS denial with the FBI. The FBI determined the 1990 case was a “potential prohibitor” and told Zundel to contact the Jamestown Police Department to obtain the missing information on the charge within 88 days or the file could not be processed.

Zundel attempted to obtain records from the Stutsman County Clerk of Court and the Jamestown Municipal Clerk of Court, but both responded that they had no records relating to his arrest or conviction or any other records of a court case. He also requested records from the Jamestown Police Department, Jamestown City Attorney, North Dakota BCI, and FBI. None had any records beyond the criminal background check reflecting a 1990 arrest by the Jamestown Police Department for simple assault annotated as “CONTINUED FOR 1 YR PENDING COUNSELING OUTCOME.” Zundel explained to the FBI that his search for records had failed and requested a favorable adjudication.

The FBI denied the appeal, holding the absence of a final disposition meant the potentially prohibiting record could not be nullified.

The court refused to just close the assault case outright in a way that would restore Zundel’s rights:

Zundel … argues this Court should declare he was not convicted of domestic violence in relation to his November 1990 simple assault charge and his right to possess a firearm was not legally impaired…. Zundel asks us to resolve whether the facts underlying the Jamestown Municipal Court simple assault case from November 1990, or the nature of any resulting conviction, involved domestic violence without any evidence in the record on which we could make such a finding.

But it orders the lower courts to search and, if necessary, supplement the records:

The courts of this state have a fundamental obligation to maintain accurate records of their proceedings. These records serve as the cornerstone of an open and accountable judicial system. This duty is not a matter of mere administrative convenience—it plays a crucial role in upholding the principles of due process and the rule of law. By accurately documenting court proceedings, decisions, and the rationale behind them, courts create an accessible record that allows for public scrutiny, facilitates appellate review, and ensures consistency in the application of law. Accurate and complete court records are essential for background checks for security clearances and sensitive employment positions, ensuring that decision-makers have a comprehensive understanding of an individual’s legal history. In criminal proceedings, these records provide crucial information for sentencing decisions and can be used to assess the credibility of witnesses. Furthermore, in family law matters, court records play a pivotal role in informing decisions about parenting time and visitation rights, directly affecting the well-being of children and families

Here, the right to keep and bear arms is implicated; in other situations, the right to vote or restrictions on participation in federal benefits and other programs may be affected. Beyond these examples, court records can also be critical in immigration proceedings, professional licensing decisions, and even in protecting individuals from identity theft or mistaken identity in legal matters. Ultimately, the careful maintenance of court records is essential to the integrity of the judicial system by fostering public trust and safeguarding the rights of all individuals who come before the court, while also serving as a vital resource for personal, professional, and legal decisions that extend far beyond the courtroom….

According to the FBI report attached as an exhibit to this petition, Zundel was arrested by the Jamestown Police Department for simple assault on November 2, 1990. If it had been retained, the missing record of actions for this case would inform Zundel and the public of the disposition of any court case filed as a result of his 1990 arrest. A register of actions containing the disposition of this case should have been indefinitely retained, but the record apparently does not exist….

Courts, as keepers of the record, have an inherent power to restore or substitute lost or destroyed records. “Given the inherent powers of the court to restore its own records, statutory methods for supplying lost records may not be the exclusive method of doing so.” A court, including the municipal court here, has a duty to replace or reconstruct the record. Absent a statutory procedure to do so, the court has discretion how to restore the record.

The first logical step is for the custodian to thoroughly search its records in an attempt to locate the record. If the record cannot be located, then a reasonable attempt to reconstruct the record must be made. Reasonable attempts may include seeking copies from other public agencies, litigants, or others likely to have retained copies, or by examining any available related documents. See, e.g., Haney v. Haney (Minn. 1925) (accepting an affidavit made by counsel wherein he detailed the contents of a missing record and explaining “statute authorizes the court to permit a copy to be filed and used instead of a lost file”). The parties may submit their own affidavits or documentary support. See, e.g., N.D.R.App.P. 10(f) (party may prepare a statement of the proceedings from the “best available means” including his own recollection, and opposing party may submit objections to the statement).

Upon request, the court may schedule a hearing to address any missing record to allow interested persons to present any documents or testimony relevant to the inquiry. Ultimately, the court may make findings and enter an order regarding the missing record, detailing the steps taken to locate or reconstruct the missing record and stating the outcome of that effort. That order must be kept as a substitute for the missing record.

We grant the petition in part and order the Jamestown Municipal Court to conduct further proceedings consistent with this opinion….

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