PSH-23-0030 - In the Matter of Personnel Security Hearing

On April 21, 2023, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored.

A state magistrate had issued a warrant for the Individual's arrest based upon charges resulting from a mass shooting incident charging the Individual with four counts of Aggravated Battery with a Deadly Weapon; five counts of Aggravated Assault with a Deadly Weapon; three counts of Abuse of a Child; and one count of Negligent Use of a Weapon.

The AJ found that warrant issued for the Individual's arrest, indicated that a judicial official found that probable cause existed that the Individual committed the offenses alleged in the arrest warrant . Moreover, the AJ found, the newspaper articles submitted by the Individual showed that police had submitted at least one affidavit to the court from an eyewitness who stated that she had observed the Individual pulling out a pistol, cocking it back, and firing at fleeing partygoers. The AJ found that information constituted reliable evidence that the Individual committed the offenses cited in the warrant. The AJ noted that while the charges set forth on the arrest warrant were retracted by the issuance of a Nolle Prosequi, that Nolle Prosequi did not fully exonerate the Individual since several statements in the Nolle Prosequi indicated that the allegations set forth in the warrant continued to raise concerns about the Individual's involvement in the mass shooting incident in which five persons received gunshot wounds.  Specifically, the Nolle Prosequi stated: "[ t]he investigation is ongoing," "[t] here have been additional events linked to the Defendant and co -Defendant that require further investigation," "[t]here are still ballistic and DNA testing results pending," and "[c]harges will be re- filed at a later date." The AJ noted that, by issuing the Nolle Prosequi without prejudice, the prosecutor reserved the right to further prosecute the Individual for the incident.  The AJ noted that if the prosecutor issued the Nolle Prosequi because evidence was uncovered suggesting the innocence of the Individual, that evidence did not appear in the record.

Therefore, the AJ found that the exhibits and testimony submitted by the Individual did not resolve the security concerns raised by the warrant. He noted that none of the documents submitted by the Individual are exculpatory. The videos submitted by the Individual that he claimed showed that a detective planted evidence in the form of spent bullet shells did not appear to the AJ to show any evidence of that allegation. Most importantly, the AJ found that the Individual's hearing testimony was completely uncorroborated and was often contradicted by other evidence in the record and therefore lacked credibility.

The Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0030, Fine)