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
Special Appendix and Joint Appendix - Volume 1, Volume 2, Volume 3, Part 1, Volume 3, Part 2
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
September 4, 2014 - Kuck's Petition to Supreme Court for Certiorari