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Federal Court Finds Due Process Violation in NY County's Confiscated Gun Policy

Friday, August 28, 2015

https://www.nraila.org/articles/20150828/federal-court-finds-due-process-violation-in-ny-countys-confiscated-gun-policy

This week, a federal court ruled that the Nassau County Sheriff's Department could not rely on its "retention policy" to keep guns seized from a woman without providing her with a due process hearing. Panzella v. Nassau County, No. 13-cv-05640 (E.D. N.Y. Aug. 26, 2015).

Christine Panzella's ex-husband had obtained an ex parte order of protection against her in June of 2012. Such orders are authorized by the New York Family Court Act, and the statute authorizes the family court to include, in the order, a requirement that the person subject to the order surrender all firearms in his or her possession. The family court did not expressly order Ms. Panzella to surrender (or the police to confiscate) her firearms or otherwise invoke the surrender requirement, although the order did include a generic warning regarding the federal law ("It is a federal crime to . . . buy, possess or transfer a handgun, rifle, shotgun or other firearm while this Order remains in effect…"). As noted in the federal court decision, this disqualification applies to orders issued after actual notice is given to the affected person and after a hearing at which that person has an opportunity to participate, and would not apply to the ex parte order.

When police officers from Nassau County served the order on Ms. Panzella a few days later, they confiscated her guns. Although the ex-husband later received an extension of the protection order, he ultimately withdrew his petition, and the court terminated the proceedings and vacated the orders in March 2013.

With these orders no longer in effect, Ms. Panzella made several requests that her two rifles and three shotguns be returned to her. The Nassau County police refused to do so based on a purported "legislative glitch" in which the family court, while authorized to order the confiscation of firearms, was not explicitly authorized to order their subsequent return when an order expired or was vacated. The police "retention policy" was not to restore firearms to their lawful owners unless and until the sheriff's department was served with a court order directing that this be done. This policy not only places the burden of recovery on the owner whose property had been seized but requires costly and time-consuming litigation.

A previous lawsuit against Nassau County, Razzano v. Cnty. of Nassau, had already resulted in a finding that police officers violated a gun owner's due process rights by failing to provide him with an adequate opportunity to recover rifles and shotguns, after these were confiscated based on a policy of doing so when the police believed a person to be dangerous. Subject to limited exceptions (when a gun is involved in a crime, for example), the police have to provide an owner with a prompt "post-deprivation" hearing. This has to take place before a neutral decision-maker, and the police have the burden of showing they are likely to succeed in any court action to maintain possession of the confiscated property. If the owner prevails at this hearing, the guns have to be returned.

Citing the Razanno decision, Ms. Panzella's federal lawsuit against Nassau County claimed that the retention policy, and police refusal to hold a hearing once the orders were no longer in effect, violated her due process rights under the Fourteenth Amendment to United States Constitution.

On August 26, the federal district court agreed. In ruling that Ms. Panzella should have been provided with a hearing, the court referred to the fact that other than the "unconvincing argument that a court order is required" for the return of the confiscated guns, the police failed to articulate "any basis for retaining" the firearms. The "legislative glitch" had no application because the family court orders did not actually mandate any surrender of guns, "let alone bar their return once the Extension Order expired." In a footnote, the court similarly rejected the defendants' indirect argument that they were not competent to determine whether to return confiscated guns, and noted that "the County's police department makes these very determinations" in connection with pistol licensing decisions. Nassau County was directed to hold a due process hearing regarding the confiscated guns within 30 days.
 

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III%
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So you know how to take the guns...but the returning of the guns?

Seems like "the taking" of someone's rights comes really easy ..even when not ordered to do so by law. But returning someones rights requires a court order! Hmmmm
 

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Yes but in the other cases this past week the judge denied the victim an injunction to get his guns back. So 3 steps forward and 2 back.
It wasn't a decision on the merits. Judge Spatt correctly found there wasn't grounds for an injunction as there was no immediate harm. That case, I'm pleased to say, will proceed to a hearing even though Nassau gave the plaintiff his guns back. This is significant where in previous instances, once the plaintiff gets the guns back they drop the case. This plaintiff and lawyer are in it to win it and apparently are going to stick it to the county and possibly blow up some part of Nassau's ridiculous licensing scheme. Stay tuned.
 

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Been there, done that. This is the 2nd such Federal case going against Nassau. The first one being with Razzano 4 years ago. But it shows that despite the first case, gun confiscations, and no returning of firearms in Nassau, are still happening. They simply don't care. And with the SAFE act, gun confiscations in regards to such matters in Family court, are now even more supported.
Not until they are hit with a multi-million dollar lawsuit about this, and lose, will they change how they operate in both Nassau and NY.
 

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Been there, done that. This is the 2nd such Federal case going against Nassau. The first one being with Razzano 4 years ago. But it shows that despite the first case, gun confiscations, and no returning of firearms in Nassau, are still happening. They simply don't care. And with the SAFE act, gun confiscations in regards to such matters in Family court, are now even more supported.
Not until they are hit with a multi-million dollar lawsuit about this, and lose, will they change how they operate in both Nassau and NY.
I like the sound of this one. Instead of the squeaky wheel getting the oil to go away, and back to business as usual, there's a chance here to shove the entire oil can up Nassau County's bunghole. Keeping my fingers crossed.
 

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This plaintiff and lawyer are in it to win it and apparently are going to stick it to the county and possibly blow up some part of Nassau's ridiculous licensing scheme.
Thanks for the link.

I am not so optimistic after reading the quotes from the judge. I did see on another website that the judge can be convinced to change his mind.

Furthermore, the judge said, the factual accounts of Weinstein and the non-party residents did not convince him the policy was being regularly applied in an unconstitutional way, which would merit an immediate stop.

In each instance, the incident became serious enough that police were called, Spatt said, later adding, "these occurrences do not involve unsolicited intrusions into the privacy of those involved."

Spatt also said Weinstein failed to address the "public policy considerations underlying the Department's confiscation policy. Nor does he present any evidence that, as a general matter, the policy fails to accomplish its goal of enhancing public safety."
 

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Thanks for the link.

I am not so optimistic after reading the quotes from the judge. I did see on another website that the judge can be convinced to change his mind.

Furthermore, the judge said, the factual accounts of Weinstein and the non-party residents did not convince him the policy was being regularly applied in an unconstitutional way, which would merit an immediate stop.

In each instance, the incident became serious enough that police were called, Spatt said, later adding, "these occurrences do not involve unsolicited intrusions into the privacy of those involved."

Spatt also said Weinstein failed to address the "public policy considerations underlying the Department's confiscation policy. Nor does he present any evidence that, as a general matter, the policy fails to accomplish its goal of enhancing public safety."
The policy fails to enhance public safety because even though the guns are removed, the subject can still go out and legally buy guns at retail as there is no arrest or conviction flowing out of the original seizure.
Spatt is anti gun but he isn't stupid and they can't shuck and jive around this little fact.
 

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...the subject can still go out and legally buy guns at retail...
Are you sure about that? Rifles - most likely, handguns - doubtful.

The below is from the Suffolk handbook. There are two items in the Suffolk handbook that could be problematic. Note the lack of definition for the second item.
GROUNDS FOR LICENSE SUSPENSION AND/OR REVOCATION
16) Failure to cooperate and comply with requests by the Pistol Licensing Bureau and/or law enforcement personnel.
22) Volatile domestic situations.

Below is from the Nassau County handbook.
2. Grounds For Suspension And/Or Revocation
A pistol license may be suspended and/or revoked based upon evidence of any disqualification pursuant to this Handbook or applicable law. The policy of the Nassau County Police Department is to immediately suspend the pistol license of any licensee who violates any of the terms and conditions of the license or this Handbook and commence an investigation to determine whether or not the license should be revoked. Violations of the terms and conditions of the pistol license include, but are not limited to:
d. Report of any domestic situation involving a licensee where violence is threatened or alleged to have occurred or the existence of a volatile domestic situation;
t. Incidents, regardless of whether an arrest was made or a case was prosecuted, where the licensee:
1) Is intoxicated and could be a threat to himself or herself or another person,
2) Has caused or threatened bodily harm to another person, or
3) Is behaving irrationally and in a manner that causes a normal rational person to be fearful or threatened by the licensee having access to firearms;

Although Weinstein's license has been restored (assuming it was suspended per the above stated policy) and his guns returned, the same may or may not be true for the non-party residents. Based on a lengthy conversation I had with a Nassau County PLB officer at a backyard graduation party, I assume one should expect suspension first, investigation later, just like the policy says.

I remain hopeful that I am being overly pessimistic and that the policy will be changed. However, the (intermediate scrutiny?) quote from the judge sounds awfully familiar.
 

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Are you sure about that? Rifles - most likely, handguns - doubtful.
I'm sure that you can't be dispossessed of a civil right to own firearms, rifle or pistol, without due process of law, even in Nassau County The Razzano v County of Nassau decision already held just this.

Neither the Nassau nor Suffolk PLB's have caught on to Heller v District of Columbia. This lawsuit is designed to educate them a little. Judge Spatt's ominous anti 2nd Amendment words in denying the injunction have nothing to do with the merits of the case. The judge most likely is trying to scare the plaintiff into settling.

You have to remember that the people in the domestic situations are not charged with crimes or subject to orders of protection. You also have to remember that what hack police brass put in a booklet isn't law.

.
 
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You, sir, are an optimist who believes our government in New York will follow the Constitution.
Not an optimists. The "government of NY" gets smacked down by courts all the time. This is an entirely egregious case with court precedent for the courts to follow.
 

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Not an optimists. The "government of NY" gets smacked down by courts all the time. This is an entirely egregious case with court precedent for the courts to follow.
While you are correct, the various layers of government here in NY have routinely denied rights to their citizens even after the courts have ruled that they cannot. It takes ANOTHER court action to FORCE them to obey the law, and then they will only do so that ONE time, for the ONE person, and to Hell with everyone else
 

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While you are correct, the various layers of government here in NY have routinely denied rights to their citizens even after the courts have ruled that they cannot. It takes ANOTHER court action to FORCE them to obey the law, and then they will only do so that ONE time, for the ONE person, and to Hell with everyone else
I agree, but that is because of the past nature of the plaintiff's and lawyering. Some big balled plaintiff's and a lawyer looking to make waves can get more than their guns back if they seek a and obtain a federal injunction prohibiting a repeat of the nonsense out of the county. This is the best attempt I've seen at this so far since the colored gun decision.
 
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I agree, but that is because of the past nature of the plaintiff's and lawyering. Some big balled plaintiff's and a lawyer looking to make waves can get more than their guns back if they seek a and obtain a federal injunction prohibiting a repeat of the nonsense out of the county. This is the best attempt I've seen at this so far since the colored gun decision.
Yup, they typically give the plaintiff what they desire to remove standing but do not change the scheme in place. Refusal to accept the "cookie" can actually make real change happen
 

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I'm sure that you can't be dispossessed of a civil right to own firearms, rifle or pistol, without due process of law, even in Nassau County The Razzano v County of Nassau decision already held just this.
Neither the Nassau nor Suffolk PLB's have caught on to Heller v District of Columbia. This lawsuit is designed to educate them a little. Judge Spatt's ominous anti 2nd Amendment words in denying the injunction have nothing to do with the merits of the case. The judge most likely is trying to scare the plaintiff into settling.
You have to remember that the people in the domestic situations are not charged with crimes or subject to orders of protection. You also have to remember that what hack police brass put in a booklet isn't law.
Grif,

It seems to me that we are fighting alongside Don Quixote. I read your words and I want to be inspired by them but then I mostly find myself shaking my head in disbelief.

We are collectively being dispossessed of our civil rights, and the due process of law is cumbersome and less than perfect in its result.

Why did Panzella have to fight substantially the same fight as Razzano and why is Weinstien and Carrol still fighting substantially the same point?

How is it permissible that the local PLBs have not "caught on to Heller" without penalty? They both instantly caught on the SAFE Act.

Why should the judges words be intended to scare the plaintiff into settling instead of the defendant?

I read the NYS Bar Association's Understanding the Second Amendment, Gun Regulation in America Today and Yesterday. It concerns me that is a continuing education publication, giving its views significant influence over future generations of lawyers in this state.

You say that "what hack police brass put in a booklet isn't law" but doesn't the case law give the licensing bureaus considerable leeway in carrying out their responsibilities? Look at the Westchester case as an example of how the NYS law gives each bureau huge discretion in crafting its regulations or how it interprets those regulations.

I am not looking for replies to my rhetorical questions. I'm just venting.
 
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