COLLOQUIUM

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Connecticut Gun Seizure Law
[discussion began September 27, 1999]

Beginning in October, police in Connecticut will be permitted to seize firearms from any person they have probable cause to believe poses "a risk of imminent personal injury to himself or herself or to other individuals." The statute authorizing this weapons seizure - the first of its kind in the U.S., and one of the toughest gun-seizure laws in force - was passed by the Connecticut legislature in June 1999 in the wake of a March 1998 murder-suicide by Matthew Beck, a 35-year old accountant who killed four people in the headquarters offices of the Connecticut Lottery before killing himself. Do you think the Connecticut legislation infringes or respects the Second Amendment guarantee of the right to bear arms? Send your comments using the form below or e-mail JURIST@law.pitt.edu. For more information on gun-related legal issues, see JURIST's Guide to Gun Laws, Gun Control and Gun Rights.

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• [William E. Garland, Seton Hall Law School] Though there is increasing, respected scholarship indicating that the Second Amendment's intent is to create individual rights, one should oppose this law without regard to which interpretation of that amendment the person believes correct. The law allows a seizure of private property without judical intervention, and is, in effect, a prejudgment remedy without notice. Courts have sustained such remedies only in limited circumstances, requiring a convincing showing based on detail facts in affidavit fashion, the weighing of this showing by a judge ( as opposed to clerk or some other court officer) and a provision for an immediate post seizure hearing at which the seizing party must bear the burden of persuasion. As described the law provides none of these safeguards, and should be rejected without regard to one's views on firearms control issues. If the underlying principle of this legislation is allowed to stand, then how can it be limited to firearms? There are numerous ot! her instruments that can post a danger to others. Should we not allow these to be seized? Why not make the matter simpler and just seize the persons whom the state's agents deem dangerous. After all, there is precedent for seizure of the body in the capias ad respondendum. If that be accepted, then why limit the law to those with dangerous instruments? We need to protect society, so let's sieze those with dangerous ideas, or people who write dangerous tracts or those who post memoranda on the internet that the state's agents deem dangerous. If we trust the state's agents to determine in ex parte fashion who is dangerous to possess firearms, how can we then deny those same agents the right to determine which persons are dangerous. So let's just let them seize those persons and we'll have a safer society, but definitely not a free one.

• [Connecticut State Representative Michael Caron (R), 44th District; Assistant Minority Leader, Connecticut General Assembly] On the morning of March 6, 1998 I was in the Gramercy Park Hotel dressing my ten month-old Mackenzie. We were going to have a day to ourselves strolling through Greenwich Village as we waited for my wife to complete her doctoral exams at New York University. CNN was on T.V. The first reports were coming in of a shooting at the Connecticut Lottery Corporation's headquarters in Newington. As I watched and more details came in it became more and more disturbing. There were five people killed.

  Among the dead was Linda Boguslawski, the former mayor of New Britain. Linda was a prominent Republican in Connecticut and was the first Republican mayor in New Britain in many years. I had met her a couple of times. She was a very likable woman, newly married and had a good long career looking at her at the Lottery.

  Also killed was the president of the Connecticut Lottery Corporation Otho Brown. Ott and I had been developing a friendship through my legislative work as the Ranking Member of the Public Safety Committee that oversees gambling issues. We had many friends in common at the national level, each of which would ask both Ott and me of the other at our respective national organization meetings. Killed by Mathew Beck. He then turned his gun on himself and died with Ott Brown in the middle of a gravel parking lot witnessed by employees hiding in the nearby woods. Another in the seemingly endless list of disgruntled employees that occurred everywhere but here; or so I thought.

  Matt had been on medical leave for stress. He had also been collecting military style weapons and showing some erratic behavior. Many reported after the killings, including a reporter from the Hartford Courant who had interviewed him once, that they felt Beck could go berserk at any time. A security guard at the Lottery found that he was so apprehensive of Beck's behavior that he brought his own gun to work. Unfortunately he told no one else of his concerns.

  As in any public forum reasons are sought to explain the unreasonable. The inexplicable. Connecticut's reaction to this tragedy was pretty predictable: more gun control. This proposal however had a novel twist.

  If one's neighbor seemed to be dangerous the police would be summoned with the ability to confiscate any guns found on the premises whether or not any crime had been committed! The working title for this proposed bill became known to legislators and their constituents alike as the "Turn in Your Neighbor" bill.

  After about six or eight weeks of wrangling, threatening, negotiating and ultimately compromising we had a bill ready for a vote. Now whether one is a Democrat or Republican many of us really didn't want to vote for this bill but when presented to us we found ourselves torn. The negotiators, Representative Ron San Angelo of the House Republicans, Representative Michael Lawlor and Senator Donald Williams the Co-Chairmen of the Judiciary Committee from which the bill had essentially originated had presented us with a bill that was hard to turn down in very many respects.

  The agreement toughens criminal penalties, corrects statutes inconsistent with federal law and establishes strict liability for the illegal transfer of firearms and allowing minors to obtain firearms. It adopts new procedures concerning mentally unstable persons who own firearms, codifies a Connecticut "Instant Check" program and increases funding for State Police investigative and handgun permit administration. But wait, there's more.

  The bill tightens gun show permit requirements, eliminates redundant administration, changes "Dangerous Weapons" criteria, initiates a School Violence Task Force to protect children from violence in the schools of the state and also a Task Force to study the source of illegal firearms (Taken from text of the Coalition of Connecticut Sportsmen gun bill fact sheet). Twenty-four sections in all. Many of these provisions in the bill were things that both sides of the gun debate had been looking for quite some time. Still the confiscation portion was very troublesome. The negotiators clearly had walked the fine line between protecting individual rights from illegal government search and seizure and what happens all too often, people familiar with ultimate killers that felt he showed signs of being a danger to others and himself.

  Section 20 of the bill authorizes seizure of firearms under certain circumstances. I will try to be brief and concise. It allows any state's attorney or their assistant, or any two police officers to file a sworn complaint after investigation to a Superior Court Judge if (1) the person poses an imminent danger to himself or others (2) he possesses one or more firearms and (3) the weapons are within or upon any place, thing or person. The judge may, (an important word for legislators), issue a warrant commanding an officer to enter, search and take all firearms into custody; there being no reasonable alternative available to prevent the person from causing injury with the firearm.

  The person named in the warrant must be given a copy with a notice of his right to a hearing and representation by counsel at it. A hearing must be held within 14 days after the warrant's execution. The hearing must determine whether the seized firearms should be returned or continue to be held by the state. The state has the burden to prove all material facts at the hearing by clear and convincing evidence. Someone whose firearms have been seized may transfer them to any person eligible to possess them within ten days of notice.

  It is a tough provision but we felt as a body that there were protections of individual's rights and the protection of the public at large. Anecdotally, to this moment the bill has been used three times since being enacted. About five or six weeks ago a man in Farmington had a couple hundred semi-automatic guns confiscated from a senior housing complex. The case is ongoing.

  A couple of weeks ago a more problematic situation occurred in Greenwich where a gunsmith 's firearms were confiscated on what according to press reports was no more than hearsay. Granted I currently do not have all the information in these cases other than as they were reported in the press but it shows the fine line we traverse in matters of gun control.

  How much liberty? How much security?

• [Raymond Pacello, Jr., The Law Office of Robert Bruce Arnold, San Diego, California] Well, as I understand it, the right to bear arms is a federal right not a state right and was never incorporated to the states via the 14th Amendment Due Process Clause.

  Moreover, reposing powerful caprice in the constables of the world raises other implications re: search and seizure, Terry v. Ohio and like criminal rights rubric. Likewise, officers are ordinarily entitled to act upon 'reasonable suspicion,' and probable cause--in most circumstances--must be run through the ear of a neutral and detached magistrate before action can constitutionally be taken. I would not invoke the second amendement as a constitutional bar to this statute, but such other amendments that are grounded in natural law and freedom concepts, i.e., the 4th amendment for one.

• [Editor's Note: the November 1 edition of the Hartford Courant reported that Greenwich police using the new law had seized 11 guns from a man they said might be dangerous.]

• [David C. Woodruff Sr., attorney, Michigan] The problem becomes one of each individual judge's test of "probable cause." There should be a prior showing of probable cause before an independent jurist in the same way that we issue search warrants, that way there would be at least some protection from overstepping by the police. This law could be very easlly abused by law enforcement. People in general at one time or another will make statements that when taken out of context, could be considered probable cause for a seizure! Then, whose burden would it be to prove that the seizure should stand or be quashed? And, if the seizure is upheld, is this a seizure of proprety without just comensation? There are way to many risks of this type of legislatution that do not outweigh the benifits! (sorry for the spelling errors, I have to leave for court)

• [Stan Voyles, Prosecutor, California] Has anyone out there bothered to read the cases interpreting the Second Amendment? If they had, they would realize that every case indicates that the Second Amendment only applies in the context of a "well organized militia". The Connecticut law clearly has no relationship to such people and no court would hold that it violated the Second Amendment. The NRA has stopped arguing the Second Amendment, but it continues to use it as a political slogan. Unfortunately, many Americans have been taken in by that fraud.

  Furthermore, even those people who interpret the Second Amendment in a somewhat scholarly fashion admit that it is not an absolute ban on firearm regulation. They admit that reasonable restrictions on firearm possession would be constitutional.

  The Connecticut law may violate the Fourth Amendment prohibition against unreasonable search and seizures, or the Due Process Clause of the Fourteeth Amendment, but not the Second Amendment.

• [Bill Mahan, California] Except for what appears from the brief description to be a very vague and very loose description of probable cause, one with no restrictions and/or checks and balances, I think that the proposed Connecticut legislation is overall a good thing. I have long believed that gun registration is not at all an unreasonable restriction on gun ownership, and that background checks for all prospective buyers is a sensible and fair means of control.

  Having said that, I also believe that the right to own a gun is not merely guaranteed in our Constitution, it is one that the states (or the Federal) governments need to respect and follow so long as specific and verifiable just cause exists to limit the public's access to firearms. I also believe, however, that very demanding gun owner safety classes must be mandated, and these should place very special emphasis on the owners' responsibility, both legal and financial, both criminal and civil, when guns belonging to them are misused and they had the obligation and power to prevent such use.

  As a citizen, a veteran, civil libertarian to some extent, I do not want any more government or government controls than necessary. But I am tired of the NRA, once an honorable organization that responsibly represented the legal and proper interests of collectors, sportsmen and other honest, law-abiding citizens, now acting as a shill for the gun industry.

  The issues of assault weapons, trigger guards, basic firearm registration do not seem like radical restrictions. And certainly given a) the huge number of incidents of illegal and dangerous gun usage in this country, and b) the recent amount of public outcry after tragic shootings, some sort of reasonable legislation is needed. It is especially sad that the NRA, once a leader in the field has become an organization with its greatest interests not thiose of either the American people or even its own members.

  I do not want my right to own a gun taken away, but I also do not want guns to be as commonplace on the street as cell phones.

• [Gerald W. Dembrowski] Who is [Connecticut Rep. Michael] Lawlor [the sponsor of the legislation] trying to fool? Are he and Connecticut trying to say until they passed this law Connecticut police had no legal means to investigate a person who posed a threat? If, prior to the passing of this law, someone had called a Connecticut police station and threatened to blow it up, would the police be handcuffed because they had no system to investigate the person who posed this threat? Maybe Lawlor and the Connecticut lawmakers need to explain exactly what was preventing Connecticut police from investigating a person who posed a threat prior to the passing of their gun confiscation law.

• [Chuck Foster] It certainly does seem to infringe on the Second Amendment. It's similar to exercising prior restraint on one's freedom of speech or freedom of press. Because the police think an individual MIGHT do something wrong they're going to restrict a consitutionally protected right?

  The only saving grace I see in it is that it does require the police to go before a judge and present evidence of some type in order to get approval for the seizure. Even so, I think the law is highly dangerous and probably unconstitutional. I won't, however, hold my breath waiting for it to be overturned by the courts.

• [Tim Hart, attorney, California] I most definitely believe that the state of Connecticut violated the 2nd Amendment. This is another example of the growing government effort to "take" guns from the innocent citizen when felons can freely roam our streets with weapons. What about the statistics indicating increases in crime where gun laws are the strictest? Where is everyone who should be protesting these egregious laws? Somehow the government has "painted" 2nd Amendment proponents as "evil." And yet all we claim is that we have the right to bear arms as our founding fathers argued.

• [Charles Goodwin, Berger & Montague PC, Philadelphia] The CT law does not infringe the 2d amendment since the possession of a weapon by a person posing an imminent threat to himself or to others has nothing to do with a well regulated militia. You don't even get off of the starting blocks on this one.

• [Mike McGlothlin, student, California] The idea of seizing firearms from potential criminals, the potentially mentally disturbed, and drug/alcohol abusers seems on the surface to be a good one. However, it clearly contradicts both the State and Federal constitutions. Additionally, it gives the police and courts more authority than is necessary. The legal standard is subject only to judicial fiat. No crime is committed here. This law allows property to be seized without compensation. Do we really want our lives to be controlled by the police and courts when we are not criminals? If someone is a criminal danger to others and themselves, let the law deal with their criminal behavior. This law was passed in reaction to an incident in which someone who had threatened to murder others made good on that threat. I thought a threat to murder others is a crime. If it is, then enforce the existing law. Our problem is that we do not enforce the laws that exist already to protect us. I want to see the current laws enforced now, not more laws in the future which take away our freedoms and make the police and courts our overlords, from which we beg and scrap and bow just to exercise liberties the government cannot take away...but does anyway. This law is just another brick in the wall of totalitarianism which is running rampant through our nation.

• [Eugene Volokh, UCLA School of Law] This isn't just a question of the U.S. Constitution; the Connecticut Constitution (art. I, sec. 15), states that "Every citizen has a right to bear arms in defense of himself and the state." The provision clearly protects an *individual* right to have guns for self-defense purposes.

  Note that 44 of the 50 state constitutions have right to keep and bear arms provisions, and the great majority of them are at least this explicit. See http://www.law.ucla.edu/faculty/volokh/beararms/statecon.htm.

• [Natasha Creech, student, South Carolina] Yes it does. In my opinion we should only have the right to bear arms if we are in military positions or if you are a sportsman. We must look at the fact that the Second Amendment was written decades before semiautomatic firearms were made. Therefore if we are to assume that the right to bear arms includes civilians using semiautomatics, then we are simply in fact infringing the Second Amendment. If the police in fact do seize firearms I'm sure it will be with good reason... Futhermore, I hope that by seizing firearms in Connecticut and around the country we put a stop to the massive increase in violence.... I certainly hope something is done about this seriously increasing and devastating "epidemic".

• [Robert Simpson] If one clears one's mind of any baggage and simply reads the amendment in English, sticking to what the words actually say rather than imbuing them with what we want them to say, it is clear that ANY gun control law is an "infringement" on the right to keep and bear arms. Laws regulating gun ownership are unconstitutional, including those that disallow convicted felons from owning fully automatic M-60s. Laws banning the carrying ("bearing") of concealed weapons into a public school are unconstitutional.

  And I don't want to hear anything about a well regulated militia. That is a dependent clause explaining WHY the first Congress agreed that there should be no infringements on gun ownership. Again, it simply bears on "why" and has no bearing on "what." They could just as easily have written, "A certain number of accidental shootings, being necessary for population control,..."

  This charade we have played over our nation's history of pretending to not understand clearly written English has given us the current level of firearm deaths, of which we practically boast as a testament to our freedoms. The 2nd Amendment doesn't need another "interpretation" by a well-meaning court; it needs to be scrapped and rewritten to account for our current societal makeup. That was the whole purpose of the amendment process - to allow each generation to write its own Constitution.

• [Chris Calivito, New York] NO. This is terrible. I am not an advocate of gun rights, but this has gone a little too far. You can't take a gun away from a man if he hasn't done anything. That is like saying that you are going to take a car away from a man because you think he might drink that night. It is way beyond the call of duty.

• [David Welch, New Hampshire House of Representatives] This is another classic example of government protecting people from themselves and does indeed infringe upon the Second Amendment "guaranteed" right to keep and bear firearms. Seizure of weapons on a whim or sense that the bearer might do harm is patently ridiculous.

• [Dr. Alastair McLeod, San Diego] The word "imminent" should be enough to save the statute under a 2nd Amendment analysis. It is the 4th Amendment that worries me. Perhaps it shouldn't. After all, if we can deprive the mentally ill of their personal liberties on the grounds of danger to themselves or the community, then I suppose we should be able to deprive threatening people of their guns on the same grounds. On the other hand, civil commitment requires a hearing, doesn't it?