Forecast 2014: Gun Owners Worry About Enforcement Of Laws

, The Connecticut Law Tribune

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Rachel Baird
Rachel Baird

Although debate over the sale, possession and use of firearms came to the forefront in the wake of the Sandy Hook Elementary shootings, attorneys involved with firearms law know that there were troubling issues even before December 2012. And the rights of gun owners will likely face further attacks in 2014.

Here's one such problem: For years, State Police officers in the Special Licensing and Firearms Unit have issued notices threatening people who are the subject of ex parte restraining orders with arrest for felony criminal possession of firearms — unless they immediately surrendered or transferred their firearms. (Such restraining orders are imposed by the courts in cases where one person may pose a danger to another – often in divorce and domestic violence situations.)

The threat of arrest was baseless as a matter of law. State and federal laws, in accord with the due process clause of the Fourteenth Amendment, require notice and opportunity to be heard on restraining orders before criminal liability attaches to the continued possession of firearms. Until the Connecticut legislature enacted Public Act 13-3 on April 4, 2013, no one took notice of this abuse of authority because it was easy enough for owners to retrieve their firearms from federal firearms licensees when the ex parte order was dissolved and no restraining order was entered.

But the expansion of the types of firearms defined as assault weapons under PA 13-3, and the prohibition of their transfer after April 4, has left more than one owner unable to reclaim his or her firearms. An assault weapon, once transferred to a federal firearms licensee, cannot be transferred back in Connecticut. So when owners who received the threatening notice could not retrieve their firearms after April 4, the long-standing State Police practice of unjustly threatening certain firearms owners with criminal liability for continued firearms possession was exposed.

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.

Put simply, a transfer of property executed under threat of unlawful arrest and prosecution by a sworn law enforcement officer is not a lawful transfer. If the property were anything other than firearms, the dispossession of private property by state-sponsored extortion simply would not be tolerated.

For now, the Firearms Unit has grudgingly modified its unlawful, misleading notice. The document now includes, as a basis for the threat of arrest, a check mark placed by the court on the ex parte order requiring the surrender or transfer of firearms.

But the Department of Emergency Services and Public Protection, which oversees the State Police, is still wrong. Under the law there is no such criminal liability for failure to surrender or transfer firearms under an ex parte order. The matter is civil. And so any threat of arrest constitutes an abuse of authority. The courts participate in this abuse by using an ex parte order judicial form that allows judges to deprive firearms owners of property, sometimes permanently, with no notice or opportunity for hearing.

Assault Weapons Ban

One day a firearm is not an assault weapon, the next day it is. This past spring, firearms became assault weapons because they were specifically and arbitrarily named as such in state law or because they have certain characteristics. Whether by name or characteristics, if a firearm is defined as an assault weapon, it is subject to prohibitions on transfer and possession and must be registered before Jan. 1, 2014.

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