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SCALISE V. DAVIS

Cite as 312 Neb. 518

Nicholas N. Scalise, appellant, v. 

Jeffrey L. Davis and the Sarpy County 

Sheriff’s Office, appellees.

___ N.W.2d___

Filed September 30, 2022. No. S-21-031.

1. Courts: Appeal and Error. In an appeal from the county court general 

civil docket, the district court acts as an intermediate appellate court and 

not as a trial court.

2. ____: ____. Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the 

record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Appeal and Error. An appellate court independently reviews questions 

of law in appeals from the county court.

5. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

6. Misdemeanors. For purposes of 18 U.S.C. § 921(a)(33)(A) (2018), a 

misdemeanor crime of domestic violence is a misdemeanor offense that 

(1) has, as an element, the use of force and (2) is committed by a person 

who has a specified domestic relationship with the victim.

7. Statutes: Words and Phrases. A divisible statute is a statute that sets 

out one or more elements of the offense in the alternative.

8. Criminal Law: Statutes: Convictions. The circumstance-specific 

approach applies where the underlying statute refers to specific circumstances rather than to generic crimes and allows a court to look beyond 

the elements of the prior offense and consider the facts and circumstances underlying an offender’s conviction.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/28/2022 08:06 AM CDT
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Cite as 312 Neb. 518

Appeal from the District Court for Sarpy County, Stefanie 

A. Martinez, Judge, on appeal thereto from the County 

Court for Sarpy County, Todd J. Hutton, Judge. Judgment of 

District Court affirmed.

Hugh I. Abrahamson, of Abrahamson Law Office, and 

Phillip G. Wright for appellant.

No appearance for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

In 2020, the Sarpy County, Nebraska, sheriff’s office denied 

Nicholas N. Scalise’s application for a certificate to possess a 

handgun. In doing so, the sheriff determined that Scalise’s prior 

conviction for third degree assault qualified as a “misdemeanor 

crime of domestic violence” under 18 U.S.C. § 922(g)(9) 

(2018). Scalise filed a handgun appeal with the county court, 

arguing that he had never been convicted of a crime of domestic violence. The county court denied Scalise’s relief, as did 

the district court on appeal. For reasons set forth herein, we 

affirm the order of the district court, affirming the order of the 

county court.

BACKGROUND

In 2018, Scalise was arrested and charged with strangulation 

from an incident arising out of an argument with the victim. 

Pursuant to a plea agreement, an amended criminal complaint 

was filed, which charged Scalise with third degree assault, a 

Class I misdemeanor, and alleged that Scalise “did intentionally, knowingly or recklessly cause bodily injury to, and/or 

did threaten [the victim] in a menacing manner, in violation 

of Section 28-310(1).” Scalise pled guilty to the amended 

complaint and was sentenced to a term of probation. After 

successfully completing probation in 2020, Scalise attempted 
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to purchase a handgun, but was advised by the retailer that 

he needed to obtain a permit from the Sarpy County sheriff’s office.

The Sarpy County sheriff’s office denied Scalise’s application for a handgun certificate pursuant to Neb. Rev. Stat. 

§ 69-2404 (Reissue 2016) and 18 U.S.C. 922(g)(9), finding 

that Scalise’s conviction for third degree assault met the criteria for domestic violence under federal law. Scalise then 

filed an appeal pursuant to Neb. Rev. Stat. § 69-2406 (Reissue 

2016) in the county court for Sarpy County, asserting that he 

had never been convicted of domestic violence or a crime of 

domestic violence.

At the hearing before the county court, the sheriff’s office 

offered exhibit 1, which contained the following documents: the 

amended complaint charging Scalise with third degree assault, 

the order placing Scalise on probation, Scalise’s request for satisfactory discharge from probation, the order releasing Scalise 

from probation, incident reports from the Papillion, Nebraska, 

police department, and the victim/witness statement.

Scalise offered exhibits 2, 3, and 4, which consisted of 

the criminal complaint charging him with strangulation; the 

amended complaint charging him with third degree assault; the 

journal entry and order showing his entry of a guilty plea to 

the amended charge; the complete transcript from the January 

24, 2019, sentencing hearing; the order placing him on probation; his request for satisfactory discharge from probation; the 

order releasing him from probation; the sheriff’s denial of his 

application for a handgun certificate; and a copy of his handgun appeal.

After the hearing, the county court issued an order denying the appeal and finding that the sheriff’s office acted in 

accordance with state and federal law. In its order, the court 

explained that § 922(g)(9) “prohibits any person who has been 

convicted in any court of a misdemeanor crime of domestic 

violence to . . . possess in or affecting commerce, any firearm 

or ammunition.”
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In discussing what constitutes a domestic violence conviction, the county court looked to the U.S. Supreme Court’s 

opinion in United States v. Hayes,

 1 which found that a domestic relationship need not be a defining element of the predicate offense under consideration when evaluating whether a 

handgun certificate can properly be issued. Because Scalise 

was convicted of third degree assault, which is a misdemeanor 

under Neb. Rev. Stat. § 28-310 (Reissue 2016) that contains 

elements of “[i]ntentionally, knowingly, or recklessly caus[ing] 

bodily injury to another person” or “threatens another in a 

menacing manner,” and because the adduced evidence showed 

that Scalise and the victim of the assault were in a domestic 

relationship, the court found the restrictions established by 

§ 922(g)(9) apply to Scalise.

Scalise appealed to the district court, which entered an 

opinion and order affirming the county court’s order and concluding that the restrictions established by § 922(g)(9) apply 

to Scalise, resulting in his ineligibility to obtain a handgun 

certificate.

Scalise timely appealed, but the sheriff’s office declined to 

file a brief in this appeal. We moved this case to our docket on 

our own motion.

ASSIGNMENTS OF ERROR

Scalise assigns, consolidated, that the district court erred in 

affirming the county court’s finding that Scalise’s third degree 

assault conviction qualified as a predicate offense for the purpose of a federal prohibition on firearms under § 922(g)(9). 

Scalise also argues the court erred in failing to advise him that 

if convicted, he would lose the right to bear arms. Scalise further makes a number of constitutional arguments pertaining to 

the Second Amendment to the U.S. Constitution, double jeopardy, and due process.

1 United States v. Hayes, 555 U.S. 415, 129 S. Ct. 1079, 172 L. Ed. 2d 816 

(2009).
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STANDARD OF REVIEW

[1-3] In an appeal from the county court general civil 

docket, the district court acts as an intermediate appellate court 

and not as a trial court. 2 Both the district court and a higher 

appellate court generally review appeals from the county court 

for error appearing on the record. 3 When reviewing a judgment 

for errors appearing on the record, an appellate court’s inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable. 4

[4,5] We independently review questions of law in appeals 

from the county court. 5 Statutory interpretation presents a 

question of law, for which an appellate court has an obligation 

to reach an independent conclusion irrespective of the determination made by the court below. 6

ANALYSIS

Applicable Federal Law

Scalise applied for his handgun certificate under § 69-2404. 

However, § 69-2404 states that an applicant cannot obtain a 

handgun certificate if the applicant is prohibited from purchasing or possessing a handgun by § 922. Section 922(g)(9) 

makes it unlawful for any person who has been convicted of a 

“misdemeanor crime of domestic violence” to possess a firearm. Under 18 U.S.C. § 921(a)(33)(A) (2018), the term “misdemeanor crime of domestic violence” means an offense that

(i) is a misdemeanor under Federal, State, or Tribal 

law; and

(ii) has, as an element, the use or attempted use of 

physical force, or the threatened use of a deadly weapon, 

2 See In re Conservatorship of Mosel, 234 Neb. 86, 449 N.W.2d 220 (1989).

3 State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).

4 Id.

5 Id.

6 State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
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committed by a current or former spouse, parent, or 

guardian of the victim, . . . by a person who is cohabiting 

with or has cohabited with the victim as a spouse, parent, 

or guardian, or by a person similarly situated to a spouse, 

parent, or guardian of the victim.

[6] In Hayes, the U.S. Supreme Court simplified this 

definition and determined that the most sensible reading of 

§ 921(a)(33)(A) defines the term “misdemeanor crime of 

domestic violence” as a misdemeanor offense that “(1) ‘has, 

as an element, the use [of force],’ and (2) is committed by 

a person who has a specified domestic relationship with the 

victim.” 7 The Court emphasized that such definition does not 

require the specified domestic relationship to be an element of 

the predicate-offense statute. 8

In United States v. Castleman, 9 the U.S. Supreme Court 

articulated the definition of the phrase “use of physical force” 

for purposes of § 921(a)(33)(A). In Castleman, the appellant 

pled guilty to “‘intentionally or knowingly caus[ing] bodily 

injury’” to the mother of his child, in violation of Tennessee 

state law. In a subsequent prosecution for being a prohibited person in possession of a firearm, the appellant argued 

his Tennessee conviction did not qualify as a “misdemeanor 

crime of domestic violence” under § 922(g)(9), because it did 

not have, as an element, the use of physical force. The U.S. 

Supreme Court disagreed and held that the Tennessee statute 

under which the appellant was convicted defined three types 

of assault, one of which was “‘[i]ntentionally, knowingly or 

recklessly caus[ing] bodily injury to another.’” 10 The Court 

concluded that the appellant’s conviction qualified as a “‘misdemeanor crime of domestic violence’” because the appellant 

7 Hayes, supra note 1, 555 U.S. at 426.

8 Id.

9 United States v. Castleman, 572 U.S. 157, 159, 134 S. Ct. 1405, 188 L. 

Ed. 2d 426 (2014).

10 Id., 572 U.S. at 168 (quoting Tenn. Code Ann. § 39-13-101 (2006)).
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pleaded guilty to having “‘intentionally or knowingly cause[d] 

bodily injury’” to the mother of his child and because the 

knowing or intentional causation of bodily injury necessarily 

involves the use of force. 11

Then, in Voisine v. United States,

 12 the U.S. Supreme Court 

extended the definition of the phrase “misdemeanor crime of 

domestic violence” to include misdemeanor assault statutes 

covering reckless conduct. In doing so, the Voisine Court held 

that a statute which prohibits the reckless causing of bodily 

injury also has, as an element, the use of physical force.

As such, in determining whether an applicant is prohibited 

from possessing a firearm, a court must consider whether the 

predicate conviction involved the use of force and whether the 

offender and the victim were involved in a domestic relationship. In making these determinations, a court is limited as to 

what evidence can be considered.

Approaches

Federal courts have outlined three separate approaches a 

court may employ in determining if a prior conviction qualifies 

as a predicate offense to trigger a federal consequence. First, 

the U.S. Supreme Court has developed and refined a methodology referred to as the “categorical approach” to determine 

whether a person’s prior state conviction qualifies as a generic 

federal offense described in the relevant statute. 13

Under the categorical approach, a court must determine only 

whether the defendant was convicted under a criminal statute 

11 Id., 572 U.S. at 169.

12 Voisine v. United States, 579 U.S. 686, 136 S. Ct. 2272, 195 L. Ed. 2d 736 

(2016).

13 See, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S. Ct. 815, 166 

L. Ed. 2d 683 (2007) (considering generic federal offenses for purposes 

of immigration law); Taylor v. United States, 495 U.S. 575, 110 S. Ct. 

2143, 109 L. Ed. 2d 607 (1990) (considering generic federal offenses for 

purposes of Armed Career Criminal Act of 1984). See, also, Orellana v. 

Mayorkas, 6 F.4th 1034 (9th Cir. 2021).
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that categorically matches the generic federal offense, without 

considering the particular facts underlying the defendant’s conviction. 14 In doing so, the court considers only the statutory 

language of the criminal statute of conviction and the generic 

federal offense, and may not consider any evidence relating to 

the defendant’s conduct. 15

[7] However, for the limited purpose of “help[ing to] implement the categorical approach,” the U.S. Supreme Court has 

recognized a narrow range of cases in which courts may apply 

a different approach: the modified categorical approach. 16

Courts may use the modified categorical approach only where 

the criminal statute of conviction is divisible. 17 A divisible 

statute is a statute that sets out one or more elements of the 

offense in the alternative. 18

Under this approach, a court must determine “‘which of 

the [alternative] statutory offenses . . . formed the basis of 

the defendant’s conviction.’” 19 To make this determination, 

a court may look to only a narrow category of documents, 

colloquially known as Shepard documents, 20 such as “‘the 

indictment or information and jury instructions or, if a guilty 

plea is at issue, . . . the plea agreement, plea colloquy or some 

comparable judicial record of the factual basis for the plea.’” 21

However, a court may not look at other evidence, such as 

14 Orellana, supra note 13 (citing Taylor, supra note 13).

15 Id.

16 Descamps v. United States, 570 U.S. 254, 263, 133 S. Ct. 2276, 186 L. Ed. 

2d 438 (2013).

17 Id.

18 Descamps, supra note 16.

19 Orellana, supra note 13, 6 F.4th at 1039 (quoting Descamps, supra note 

16).

20 Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 

(2005).

21 Orellana, supra note 13, 6 F.4th at 1040 (quoting Nijhawan v. Holder, 557 

U.S. 29, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009)).
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police reports or victim statements, to determine what crime 

the defendant actually committed, because such review would 

amount to a collateral trial and raise concerns pertaining to the 

Sixth Amendment to the U.S. Constitution. 22

[8] More recently, in Nijhawan v. Holder,

 23 the U.S. 

Supreme court recognized a third approach: the “‘circumstance-specific’” approach. Such approach applies where the 

underlying statute refers to specific circumstances, rather than 

to generic crimes. This approach allows a court to look beyond 

the elements of the prior offense and consider the “facts and 

circumstances underlying an offender’s conviction.” 24 One 

indication that a statute refers to specific circumstances rather 

than to generic crimes is statutory language focusing on 

“the conduct involved ‘in’” rather than “the elements of ” an 

offense. 25 For example, the Nijhawan Court stated that the 

Immigration and Nationality Act provides for the deportation of any alien convicted of an aggravated felony. Under 

this act, the definition of “‘aggravated felony’” includes “‘an 

offense that . . . involves fraud or deceit in which the loss

to the victim or victims exceeds $10,000.’” 26 In Nijhawan, 

the U.S. Supreme Court determined that this particular provision in the Immigration and Nationality Act invoked the 

circumstance-specific approach because the words “in which” 

could refer to “the conduct involved ‘in’ the commission 

of the offense of conviction, rather than to the elements of 

the offense.” 27

A statute may also present a hybrid situation in which one 

section of the statute is governed by one approach, while 

22 See Orellana, supra note 13 (citing Shepard, supra note 20).

23 Nijhawan, supra note 21, 557 U.S. at 34.

24 Id. Accord U.S. v. White, 782 F.3d 1118 (10th Cir. 2015).

25 Nijhawan, supra note 21, 557 U.S. at 39. See, also, Bogle v. Garland, 21 

F.4th 637 (9th Cir. 2021).

26 Nijhawan, supra note 21, 557 U.S. at 32.

27 Id., 557 U.S. at 39 (emphasis omitted).
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another is subject to a different approach. For example, 

although not expressly stated, it appears that the Hayes Court 

employed a hybrid approach by applying the circumstance-specific approach to the specific domestic relationship requirement 

and the categorical approach to the “use of physical force” 

requirement. 28

Further, in U.S. v. Doss,

 29 the Ninth Circuit analyzed 18 

U.S.C. § 3559(e)(1) (2018), which delineates federal sentencing guidelines for repeat sex offenders and provides for a mandatory minimum life sentence for certain federal sex offenses 

if the defendant has a “prior sex conviction in which a minor 

was the victim.” Relying on the U.S. Supreme Court’s reasoning in Nijhawan, the Doss court concluded that § 3559(e) 

presents a hybrid situation because while the phrase “a prior 

sex offense conviction” requires application of the categorical 

approach, the phrase “in which a minor was the victim” calls 

for application of the circumstance-specific approach.

Thus, like § 3559(e), § 921(a)(33)(A)(ii) also implicates 

the hybrid approach employed in Hayes and Doss. Here, as 

mentioned earlier, § 921(a)(3)(A)(ii) can be broken into two 

parts. One provision requires that the predicate offense be 

committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a 

child in common, by a person who is cohabiting with or has 

cohabited with the victim as a spouse, parent, or guardian, or 

by a person similarly situated to a spouse, parent, or guardian 

of the victim. Federal circuit courts generally agree that Hayes 

can be construed as using a circumstance-specific approach to 

28 See United States v. Hayes, supra note 1. See, also, U.S. v. Price, 777 

F.3d 700 (4th Cir. 2015) (stating that Hayes Court reasoned that legislative 

history supported use of factual analysis on specific issue of domestic 

relationship); U.S. v. Gonzalez-Medina, 757 F.3d 425 (5th Cir. 2014) 

(characterizing Hayes as holding that domestic relationship requirement 

need not be element of predicate statute of conviction and could be 

determined under circumstance-specific approach).

29 U.S. v. Doss, 630 F.3d 1181 (9th Cir. 2011).
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determine the existence of the specified domestic relationship 

as required by § 921(a)(33)(A)(ii). In reaching these conclusions, federal circuit courts considered the statutory language 

(“committed by”), the broad Congressional purpose of the 

law, and the fact that only one-third of states had criminal 

statutes that specifically proscribed domestic violence when 

the provision was enacted. 30

By contrast, the other provision in § 921(a)(3)(A)(ii) requires 

that the predicate offense has, as an element, “the use or 

attempted use of physical force.” Although the Hayes court 

employed the categorical approach to the second provision, 

such approach is not appropriate here, because § 28-310(1) is 

a divisible statute.

Under § 28-310(1), a person commits third degree assault 

under two enumerated alternatives: “(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; 

or (b) [t]hreatens another in a menacing manner.” Because 

§ 28-310(1) sets out one or more elements of the offense in the 

alternative, the statute is a divisible statute. Though a conviction secured under alternative (a) may trigger the prohibition 

on firearms under federal law, a conviction under alternative 

(b) will not.

As such, when considering an appeal from the denial of 

an application for a handgun certificate, Nebraska courts 

should employ the circumstance-specific approach to the 

specified domestic relationship requirement, but employ the 

modified categorical approach to the “use of physical force” 

requirement.

Application

In this matter, Scalise’s primary argument is that his third 

degree assault conviction under § 28-310 does not qualify as a 

misdemeanor crime of domestic violence because he was not 

convicted of domestic assault under Neb. Rev. Stat. § 28-323 

30 Gonzalez-Medina, supra note 28 (citing Hayes, supra note 1).
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(Reissue 2016) and because the sentencing court did not make 

a finding of a domestic relationship.

In making this argument, Scalise fails to appreciate that 

§ 921(a)(33)(A)(ii)’s definition of the phrase “misdemeanor 

crime of domestic violence” does not require that the predicate 

conviction be one of domestic assault or domestic violence. 

Rather, the federal statute simply requires that the predicate 

conviction have, as an element, the use of physical force and 

be committed by a person who has a specified domestic relationship with the victim. 31 As such, a conviction under either 

§ 28-310 or § 28-323 can satisfy the definition of a misdemeanor crime of domestic violence depending on the circumstances of the offense. Further, to the extent Scalise argues that 

§ 28-310 does not have a domestic relationship element, such 

argument is negated by the fact that the circumstance-specific 

approach, applicable to the domestic relationship requirement 

of § 921(a)(33)(A)(ii), allows us to look beyond the elements 

of § 28-310.

Specifically, the circumstance-specific approach allows this 

court to go beyond the limited universe of Shepard documents 32 and to the facts and circumstances underlying Scalise’s 

conviction for third degree assault. 33 Contrary to Scalise’s 

claim that the evidence does not establish a domestic relationship between himself and the victim, the police department’s 

incident report, as well as the victim/witness statement, establishes that Scalise and the victim were in a dating relationship 

for approximately 5 years, which included cohabitation for a 

period of time.

Additionally, Scalise’s reliance on the definition of “intimate 

partner” in § 28-323(8) to support his argument is misplaced 

and erroneous. Section 28-323(8) states:

31 See Hayes, supra note 1.

32 Shepard, supra note 20.

33 See Lindo v. Secretary, U.S. Department of Homeland Security, 766 Fed. 

Appx. 897 (11th Cir. 2019). See, also, Nijhawan, supra note 21.
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For purposes of this section, intimate partner means 

a spouse; a former spouse; persons who have a child 

in common whether or not they have been married or 

lived together at any time; and persons who are or were 

involved in a dating relationship. For purposes of this 

subsection, dating relationship means frequent, intimate 

associations primarily characterized by the expectation of 

affectional or sexual involvement, but does not include 

a casual relationship or an ordinary association between 

persons in a business or social context.

(Emphasis supplied.) It is clear that § 28-323(8)’s definition 

of “intimate partner” is for purposes of that particular statute 

and has no bearing on our analysis under § 921(a)(33)(A)(ii). 

Thus, the district court properly found that Scalise’s conviction 

satisfies the domestic relationship requirement of § 921(a)(33). 

This assignment of error is without merit.

In regard to the “use of physical force” requirement, Scalise 

assigns that the “trial court failed to determine if [his] simple 

assault conviction contained the necessary elements of knowingly or recklessly causing bodily injury.” However, in his 

brief, he makes no arguments regarding this assigned error. 

Instead, he focuses on the alleged errors as to his relationship with the victim. In order to be considered by an appellate 

court, an alleged error must be both specifically assigned and 

specifically argued in the brief of the party asserting the error. 34

Accordingly, we will not address this argument.

Notice Requirement

Scalise further contends that the county court failed to give 

him notice that his conviction could prevent him from possessing a handgun in the future as required by Neb. Rev. Stat. 

§ 29-2291(1) (Reissue 2016). Section 29-2291(1) provides:

When sentencing a person convicted of a misdemeanor 

crime of domestic violence as defined in 18 U.S.C. 

34 Humphrey v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022).
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921(a)(33), as such section existed on July 18, 2008, 

the court shall provide written or oral notification to the 

defendant that it may be a violation of federal law for the 

individual: To ship or transport in interstate or foreign 

commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or 

foreign commerce.

The record before us clearly shows that the court gave 

Scalise the requisite advisement pursuant to § 29-2291. As 

such, this assignment of error is meritless.

Remaining Assignments of Error

Lastly, as previously mentioned, Scalise assigned as error 

a number of constitutional arguments concerning the Second 

Amendment, double jeopardy, and due process. We decline 

to address these assignments of error because neither the 

county court nor the district court addressed Scalise’s constitutional claims. A constitutional issue not presented to or passed 

upon by the trial court is not appropriate for consideration 

on appeal. 35

CONCLUSION

For the foregoing reasons, the district court did not err 

in affirming the county court’s denial of Scalise’s handgun 

appeal.

Affirmed.

35 State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).

Stacy, J., concurring.

The majority opinion provides much‐needed guidance on the 

requirement in Neb. Rev. Stat. § 69‐2404 (Reissue 2016) that 

applicants who are “prohibited from purchasing or possessing a handgun by 18 U.S.C. 922” shall not receive a handgun 

certificate. I agree in all respects with the majority’s analysis 

and disposition, but write separately to highlight some of the 
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procedural questions that remain unanswered in appeals from 

the denial of handgun certificates.

This appeal is authorized by Neb. Rev. Stat. § 69‐2406 

(Reissue 2016), which provides, in full:

Any person who is denied a certificate, whose certificate is revoked, or who has not been issued a certificate 

upon expiration of the three‐day period may appeal 

within ten days of receipt of the denial or revocation to 

the county court of the county of the applicant’s place 

of residence. The applicant shall file with the court the 

specific reasons for the denial or revocation by the chief 

of police or sheriff and a filing fee of ten dollars in 

lieu of any other filing fee required by law. The court 

shall issue its decision within thirty days of the filing of 

the appeal.

Although this statute affords individuals the right to appeal to 

the county court from the denial or revocation of a handgun 

certificate, it is largely silent on the procedure for such an 

appeal. Who are the parties of record in such an appeal? Must 

the chief of police or sheriff be served with a notice of the 

appeal? What does the appellate record consist of and who has 

the responsibility to prepare it? Is it appropriate to hold an evidentiary hearing before the county court? Is the decision of the 

chief of police or sheriff reviewed by the county court de novo, 

reviewed for errors appearing on the record, or reviewed for an 

abuse of discretion? What relief is the county court authorized 

to order? 1 These procedural questions are not addressed in 

§ 69‐2406, and they are not adequately addressed in any other 

statute setting out default appeal procedures.

Neb. Rev. Stat. § 25‐1937 (Reissue 2016) addresses the 

default procedure for appeals “[w]hen the Legislature enacts 

1 Compare Neb. Rev. Stat. § 84‐917 (Reissue 2016) (providing that in 

appeals under Administrative Procedure Act district court “may affirm, 

reverse, or modify the decision of the agency or remand the case for 

further proceedings”).
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a law providing for an appeal without providing the procedure 

therefor . . . .” It provides that “the procedure for appeal to the 

district court shall be the same as for appeals from the county 

court to the district court in civil actions” and states that in 

such appeals, “[t]rial in the district court shall be de novo upon 

the issues made up by the pleadings in the district court.” 2

But § 25‐1937 does not describe the appellate procedure or 

standard of review for appeals that are to be initiated in county 

court, as set forth in § 69‐2406.

Neb. Rev. Stat. § 25‐2701 (Reissue 2016) provides a procedure for county courts to follow when no other specific procedure has been enumerated by the Legislature. It provides:

All provisions in the codes of . . . civil procedure governing actions and proceedings in the district court not in 

conflict with statutes specifically governing procedure in 

county courts and related to matters for which no specific 

provisions have been made for county courts shall govern 

and apply to all actions and proceedings in the county 

court. 3

While helpful, § 25‐2701 does not fill the procedural void 

created by § 69‐2406. This is so because the statutory procedures for appeals before the district court either conflict with 

the limited statutory procedures announced in § 69‐2406 4 or 

do not fit the statutory scheme described by § 69‐2406, under 

2 § 25‐1937.

3 § 25‐2701.

4 Compare § 69‐2406 (providing that applicant has 10 days to appeal from 

decision or revocation and must “file with the court the specific reasons 

for the denial or revocation,” as well as pay filing fee of $10) with Neb. 

Rev. Stat. § 25‐2729 (Cum. Supp. 2020) (providing that appealing party 

has 30 days after entry of county court judgment or final order to file 

notice of appeal with clerk of county court and deposit docket fee), Neb. 

Rev. Stat. § 25‐2733 (Reissue 2016) (providing that “the district court 

shall review the case for error appearing on the record made in the county 

court”), and § 25‐1937 (providing that “[t]rial in the district court shall be 

de novo upon the issues made up by the pleadings in the district court”) 

(emphasis supplied).
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SCALISE V. DAVIS

Cite as 312 Neb. 518

which there is no judgment or final order from which to appeal. 

Under the existing provisions of § 69‐2406, it is not even clear 

whether the county court has a record to review beyond the 

applicant’s description of the “specific reasons for the denial or 

revocation by the chief of police or sheriff.” 5

Section 69‐2406 was intended to give applicants an expedited appeal process when a handgun certificate is denied or 

revoked by the chief of police or the sheriff. But until the 

Legislature establishes a clear statutory procedure to govern 

such appeals, there will be continued uncertainty and a lack of 

uniformity in how these appeals are processed and resolved in 

the county courts.

Cassel, J., joins in this concurrence.

5 See § 69‐2406. But, see, 272 Neb. Admin. Code, ch. 22, § 006.03 (2022) 

(“[t]he agency to which an application was made will preserve evidence 

of the reason(s) for denial or revocation for at least 30 days, should the 

applicant appeal the denial or revocation”). Cf. Neb. Rev. Stat. § 69‐2414 

(prescribing procedure for applicants denied right to purchase or receive 

handgun to petition Nebraska State Patrol requesting “amendment of the 

record pertaining to him or her”).