Connecticut Firearms Litigation Update - Kuck v. Masek
[Links to Court Filings/Orders Follow At Conclusion Of Article]
M. Peter Kuck is the longest-serving member (since 1997) of the nine-member Connecticut State Board of Firearms Permit Examiners ("Firearms Board"). The Governor appoints two members of the Firearms Board from the public and seven from those nominated by statutorily-designated state agencies and private associations. One of these private associations, Ye Connecticut Gun Guild, has refused, continuously, despite Governor Malloy's requests and efforts, to nominate anyone other than Mr. Kuck to fill the place on the Firearms Board statutorily reserved for a Ye Connecticut Gun Guild nominee.
Mr. Kuck was in 2007 the most outspoken member of the Firearms Board in his public criticism of state police practices in revoking handgun permits. Mr. Kuck consistently relied upon a 2006 New York State Police audit finding many deficiencies within the Connecticut State Police including dishonesty and criminal behavior. Mr. Kuck used the official findings of the audit to question the credibility of Connecticut state police officers who appeared before the Firearms Board.
In Connecticut a government-issued permit is required to carry a handgun outside the home. An individual applies to the local municipal authority where he or she resides and once a temporary permit issues the holder may obtain a five-year permit from the state police. The permit must be renewed every five years with the state police. To obtain a permit, among other things, a person cannot be an alien illegally or unlawfully in the United States. Prior to the issuance of a temporary permit and a 5-year permit to Mr. Kuck in 1982 an investigation was performed as required by state statute confirming through documentation and records that Mr. Kuck was born in New York. There has never been any evidence that Mr. Kuck, the longest-serving member of the Firearms Board and a long-standing permit holder, was not a United States citizen.
When Mr. Kuck presented himself to the state police in March 2007 to renew his permit he was denied renewal based, allegedly, on his refusal to present a birth certificate, passport, or voter identification. Mr. Kuck's possession of a permit was in fact proof that he was not an alien illegally or unlawfully in the United States and no law required him to prove he was not an alien illegally or unlawfully in the United States. Mr. Kuck appealed the denial in April 2007 and waited until October 8, 2008, for a hearing before the Firearms Board. His permit was renewed on October 9, 2008.
Mr. Kuck filed a federal action in September 2007 alleging a violation of his procedural due process rights under the Fourteenth Amendment to the United States Constitution that was dismissed by the district court. The Second Circuit reversed the district court's dismissal in March 2010 and remanded, finding that Mr. Kuck held a liberty interest under the Connecticut constitution in his permit and the state's ability to regulate firearms did not extinguish the liberty interest at stake or eliminate the need to afford due process. The district court again on remand granted judgment in favor of the state defendants and the Firearms Board.
In November 2013 the Second Circuit affirmed the district court finding that the "undisputed evidence in the record establishes that the delays at issue resulted from routine administrative burdens that were compounded by significant and unforeseeable increases in the number of appeals before the Board, and that the Board made good faith and ultimately successful efforts to reduce those delays." The wait period for a hearing is currently 23 months and since the Second Circuit's decision, at one point, the wait period was 30 months.
As long as the right to a timely hearing is not recognized, the government will not allocate resources and will rely on the claim that it is performing at optimum level in consideration of the lack of resources to avoid its constitutional obligations. However, when a right is guaranteed under state or federal law then the resources must be allocated to preserve that right otherwise the state must forgo its regulation, in this case permits to carry outside the home, as unwieldy and incompatible with the Second Amendment.
March 23, 2010 - Second Circuit Decision in Kuck v. Danaher
October 16, 2012 - U.S. District Court of Connecticut Decision in Kuck v. Danaher
April 4, 2013 - Kuck's Appellate Brief to Second Circuit in Kuck v. Masek
July 3, 2013 - Kuck's Reply Brief to Second Circuit in Kuck v. Masek
November 21, 2013 - Second Circuit Decision in Kuck v. Masek
December 5, 2013 - Kuck's Petition to Second Circuit for Rehearing En Banc
April 7, 2014 - Second Circuit Denial of Kuck's Petition for Rehearing En Banc
Press Release: Attorney Baird And Edward Peruta To Appear on Kate Krueger Talking Guns This Sunday, 07/27/2014, At 2:30 PM EDT
Kate Krueger has invited Attorney Baird and Ed Peruta back to her live radio show, Kate Krueger Talking Guns, for a report from Connecticut. Kate and her listeners in Arizona and around the nation have taken a particular interest in Connecticut, its new gun laws, the pending legal challenge to the new laws in federal court, and also the problems that individual gun owners have that do not make it to the front pages of newspapers. Visit Kate at www.kktgradio.com to learn more about all of the issues she is involved in and to find how to listen live on the internet this Sunday.
The Connecticut Bar Association And The Brady Center As Joint Amici Curiae In Shew v. Malloy
A July 9th article in The Connecticut Law Tribune reported a proposal by The Connecticut Bar Association's Human Rights and Responsibility Section to join as an amicus curiae in a brief to be filed by "advocates interested in preventing gun violence, led by the Brady Center [to Prevent Gun Violence]" in the Shew v. Malloy case pending before the United States Court of Appeals for the Second Circuit.
In a July 15th letter to CBA President Mark A. Dubois, Attorney Baird asked the CBA to consider as a threshold issue whether the CBA ethically should support one party over another in an appeal from a judicial decision written by one of its members, The Honorable Alfred V. Covello. As stated by Attorney Baird to CBA President Dubois:
Already, in predicting that the Connecticut gun law will stand on its merits, you commented on Judge Covello's decision as "well reasoned and followed the law" without acknowledging the association between the CBA and the judge. While you characterize as threshold the issue of whether the CBA should "get involved in matters that are social or political" or define itself as "a professional organization only concerned with matters affecting the practice of law," absent is a consideration of the consequence for a judge as well as the case when a voluntary association in which Judge Covello lists himself as a member files a brief, on the entire membership's behalf, supporting the side in whose favor the judge ruled. This scenario, which conjures the true threshold question, points to the only answer for the CBA: Forgo filing or joining as an amicus curiae in briefs that create conflicts for CBA members and jeopardize cases.
Subsequent to Attorney Baird's July 15th letter, Connecticut Carry, Inc. President Rich Burgess discovered that the CBA had taken a position in March 2013 in support of the new gun laws prior to the filing date in Shew v. Malloy and Judge Covello's assignment to the case.
Despite these concerns, the CBA's House of Delegates voted 34-15 on July 21st to join The Brady Center as an amicus curiae asking the United States Court of Appeals for the Second Circuit to affirm the decision by Judge Covello in Shew v. Malloy.
Attorney Baird To Attend CCDL Fundraiser For Shew v. Malloy Litigation Fund Featuring Guest Speaker Ambassador John Bolton
Information about attending the July 20th event may be found at The Connecticut Citizens Defense League website.
Attorney Baird Comments in FOX NEWS Associated Press Article on Firearms Seizure Warrants
In the FOX NEWS July 6, 2014-Associated Press article, "States look to gun seizure law after mass killings," Attorney Baird, Richard Burgess of Connecticut Carry, South Windsor Police Chief Matthew Reed, and Undersecretary Michael Lawlor comment on the example the Connecticut Risk Warrant statute presents for other states to follow.
"Rachel Baird, a Connecticut lawyer who has represented many gun owners, said one of the biggest problems with the state's law is that police are abusing it. She said she has had eight clients whose guns were siezed by police who obtained the required warrants after taking possession of the guns.
'It's stretched and abused and since it's firearms, the courts go along with it,' Baird said of the law."
"Assault Weapons" Petition for Declaratory Rulings Filed on March 25, 2014
A Petition filed on behalf of Connecticut Carry asks the Commissioner of the Department of Emergency Services and Public Protection (DESPP) to rule on two issues affecting firearms owners. The Petition for Declaratory Rulings asks the Commissioner for rulings to declare:
(1) The act of modifying a lawfully possessed assault weapon by adding features or changing characteristics is lawful and therefore not subject to criminal liability.
(2) The laws passed in No. 13-220 of the 2013 Public Acts (P.A. 13-220) on June 18, 2013, retroactively legalized firearms that had been defined since passage of No. 01-130 of the 2001 Public Acts (P.A. 01-130) on June 28, 2001, as assault weapons subject to a prohibition on possession.
According to the Uniform Administrative Procedures Act (UAPA), the DESPP, as the agency served the Petition for Declaratory Rulings, shall give notice within thirty days after receipt of the Petition to all persons to whom notice is required by any provision of law and to all persons who have requested notice of declaratory ruling petitions on the subject matter of the Petition.
If the agency (DESPP) finds that a timely petition to become a party or to intervene has been filed according to agency regulations, the agency then: (1) May grant a person status as a party if the agency finds that the petition states facts demonstrating that the petitioner's legal rights, duties or privileges shall be specifically affected by the agency proceeding; and (2) may grant a person status as an intervenor if the agency finds that the petition states facts demonstrating that the petitioner's participation is in the interests of justice and will not impair the orderly conduct of the proceedings.
Within sixty days after receipt of the Petition , the agency (DESPP) shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances, (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date, (4) decide not to issue a declaratory ruling and initiate regulation-making proceedings, under section 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reasons for its action.
For more information about the UAPA as it applies to a Petition for Declaratory Rulings see General Statutes § 4-176.
Press Release: Mack, Krauser, Peruta, Baird, Burgess and Korwin on New Episode of Talking Guns Radio 3/23/2014
Mack, Krauser, Peruta, Baird, Burgess and Korwin on New Episode of Talking Guns Radio 3/23/2014
Talking Guns Radio and Kate Krueger will be joined Sunday 3/23/2014 by a group of great Americans and patriots starting with Sheriff Richard Mack former Graham County Sheriff and speaker, Shane Krauser radio show host and founder American Academy for Constitutional Education (AAFCE), Ed Peruta of Connecticut Gun Rights , Rachel M. Baird, CT Attorney , Rich Burgess, Pres. Connecticut Carry Inc. and Alan Korwin author and speaker. This is stacked up to be a very powerful show.
Tune in to Kate Krueger Talking Guns at www.kktgradio.com and click on the microphone to listen live on Sunday’s at her new time 10AM-Noon AZ Time or visit anytime to download the archives. For those with Smart Phones go to your podcast app search for Kate Krueger Talking Guns and subscribe.
About Kate Krueger:
Kate Krueger, Talking Guns host, firearms instructor, competitor, writer and patriot has been featured in National Review, Politico, Shooting Industry, Outdoor Channel and numerous publications, served as a panel member at NSSF Shot Show 2014 “Marketing to Women” and speaks locally to groups like the Oath Keepers. Today she brings all that passion and skill together for you with Talking Guns!!!
Press Release Courtesy of ArizonaShooting.com.
Forecast 2014: Gun Owners Worry About Enforcement Of Laws
The Connecticut Law Tribune asked Attorney Baird at the end of 2013 to submit a commentary on her forecast for the year ahead for gun owners in Connecticut. An excerpt from the commentary addresses the deficiencies at the state police Special Licensing and Firearms Unit, the agency tasked with implementing and administering the new laws related to firearms in Connecticut:
"The chaos in the Firearms Unit will become even more apparent after Jan. 1, 2014, and doubtless be attributed by apologists to the burdens placed upon State Police in implementing complex new laws. But the new statutes have simply exposed what any attorney with a firearms practice in Connecticut has known for years: the Firearms Unit does not know the law, and holds local police departments, the legislature, courts, and ultimately firearms owners at its mercy because few have the courage and confidence in their own knowledge of the law to question State Police about firearms matters."
Read more from the December 27, 2013, commentary by Attorney Baird at http://www.ctlawtribune.com/id=1202635142961/Forecast-2014%3A-Gun-Owners-Worry-About-Enforcement-Of-Laws#ixzz2wFtaScrn
Gun Owners of America Executive Director Larry Pratt Interviews Ed Peruta
Congratulations to Our Legal Investigator Ed Peruta
In 2009 our legal investigator Ed Peruta applied to the San Diego County Sheriff's Department for a permit to carry a concealed handgun in public. The County denied Ed's application for lack of "good cause." Ed retained San Diego attorney Paul Neuharth, Jr. and filed a federal lawsuit but the trial court ruled in favor of the County and Ed lost. With the support of the National Rifle Association and the Long Beach law firm of C.D.Michel & Associates Ed's case was appealed to the Ninth Circuit Court of Appeals. In the February 13, 2014, Peruta v. San Diego decision the Court of Appeals ruled in favor of Ed and his claim that the right to carry outside the home is protected by the Second Amendment.C.D.Michel & Associates and the Court of Appeals continue to provide updates to Ed's case as the State of California, after remaining silent on the issue for more than four years while Ed's case was pending, is now attempting to intervene to reverse the decision.