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Old March 25, 2010, 11:29 AM   #1
Bartholomew Roberts
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Second Circuit Finds Due Process Claim for Connecticut Firearms Permit Holder

The Volokh Conspiracy has a good article about a recent Second Circuit decision.

Apparently if you are denied a permit in Connecticut, you will be waiting a long, long time to get an appeal (an average of 14-20 months).

M. Peter Kuck, a Secretary of the Connecticut Board of Firearms Permit Examiners, has held a firearms permit since 1982. During a recent renewal, the Board asked for proof of citizenship before it would renew his permit. Kuck pointed out he had held the permit for some 20+ years already and had never been asked for citizenship before and challenged the Board's authority to request such information. The Board denied his permit.

Kuck appealed the denial and his hearing was scheduled for a date 18 months distant. Kuck sued for denial of his due process rights (a right to have a timely hearing on his right to own a firearm). Connecticut moved to dismiss the case. The Second Circuit Court of Appeals (which at this stage views all facts in the light most favorable to Kuck) found that the 18 month wait without any explanation was an unreasonable delay and a denial of Kuck's due process rights.
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Old March 25, 2010, 12:13 PM   #2
Tom Servo
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Quote:
All in all, deprivation of a firearm permit may not represent the same day-to-day hardship occasioned by the seizure of a vehicle used for daily transportation, as in Krimstock, or interference with a businessperson’s livelihood, as in Spinelli. Yet the Connecticut Constitution establishes a clear liberty interest in a permit to carry a firearm – an interest that is highly valued by many of the state’s citizens. See Conn. Const. art. I, § 15 (“Every citizen has a right to bear arms in defense of himself and the state.”). Though not overwhelming or absolute, we conclude that the private interest at stake remains significant.
It's worth mentioning that Spinelli v. City of New York is a Sotomayor opinion, finding:

Quote:
The district court erred, however, in dismissing the due process claim. Plaintiff has a protected property interest in her gun dealer license. Although she was not entitled to a hearing before her license was suspended, she was entitled to notice and an opportunity to be heard after the suspension, and the City’s policy of delaying any such notice and hearing until after a police investigation is completed, which can take years, does not comport with due process. “[O]nce the City took possession of [the dealer's] property pending investigation, it was incumbent upon the City to provide a prompt hearing.” p. 27
From yesterday's Kuck opinion:

Quote:
Our procedural due process analysis is controlled by the three-factor test prescribed in Mathews v. Eldridge, . This test requires that we balance: “(1) the private interest at stake; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value (if any) of alternative procedures; (3) the government’s interest, including the possible burdens of alternative procedures. p. 6
It's not a coincidence that some of that looks like (mild) intermediate scrutiny. It's good news for folks in Connecticut.
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Old March 25, 2010, 03:30 PM   #3
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The problem is the board of firearms permit examiners, last I knew ( my info is a few years old, I have had no dealings with them in a while, so don't quote me) was a part time operation. They met very infrequently and the list of people waiting to go before the board has gotten longer and longer. I arrested someone for DWI and Carrying a Firearm While Intoxicated and it took years to get before the board. I have heard that's changed and they meet more frequently now, but I am not sure. Frankly, I think if you should be denied or revoked you should have a hearing in a timely fashion, but nobody wants to pay more taxes to have the board sit full time, so things back up. Catch 22, the state is broke, so I am not sure if anything will change.
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Old March 26, 2010, 09:34 AM   #4
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Quote:
Frankly, I think if you should be denied or revoked you should have a hearing in a timely fashion, but nobody wants to pay more taxes to have the board sit full time, so things back up.
The article mentioned that the board held only 40 appeals in 2006-2007 and "resolved" another 249 appeals prior to hearing in the same time period. That is 289 appeals heard during 2006-2007. Even part-time, you would think they could process something more than that.

I think the average number of civil cases a District Court in Texas hears is around 2,116 per year. So even assuming that the Board of Firearms Permit Examiners hearing was as in-depth as a proceeding in District Court and that they only worked a quarter of the time, I would still expect them to dispose of cases roughly twice as fast as they have been doing, even in the worst case scenario.
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Old March 26, 2010, 10:46 AM   #5
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still liberal Conn.

Unfortunately, Conn. is NOT a "shall issue" state. It remains one of the 6 "we'll give you a CC permit if we feel like it" venues. Until this is changed, our 2nd amendment right to keep and BEAR arms will be subject to the whim of some left-wing bureaucrat.
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Old March 26, 2010, 01:17 PM   #6
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Yet another reason for states to adopt VT or AK-style CCW laws. No permits for most people means much less administrative overhead, and a very small additional overhead to deal with appeals from the already vastly diminished number of people who want permits simply for reciprocity (most people who want reciprocity will go for another state's out-of-state permit).

That leaves more state funds and other resources to deal with actual problems.
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Old March 29, 2010, 03:36 AM   #7
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Technically, CT is a Shall Issue state. If your town roadblocks you, you apply directly to the state. If they roadblock you, you appeal it. Ultimately, anyone with a legal right as the laws allow, ends up with a permit. It's is definitely not a perfect system though, but that's what happens in an unfriendly gun state.

Last I knew there is a bill floating around in Hartford that will pretty much make CT a May Issue or even a No Issue state. That bill, originally Governor's Bill No. 839, wants to merge the operations of the currently independent Board of Firearm Permit Examiners with the Department of Public Safety. So the foxes will control the hen house. If that happens, the very agency that denies your permit application has the final say in your appeal of your denial. Kind of effectively eliminates your chance of being successful. I don't know where the bill is in the system, but I believe it's up for review again. :barf:
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Old March 29, 2010, 03:08 PM   #8
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Trust me when I say that the SLFU is not anti-gun, don't believe everything you hear.
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