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Lawyers struggle to fight gun seizures in Connecticut
The Connecticut Law Tribune
As Connecticut lawmakers discuss how already-strict state gun laws might be strengthened in response to the Newtown shootings, some lawyers are expecting a spike in firearms confiscations under an existing law.
Connecticut's gun seizure law allows police to take a licensed firearm from someone who is considered a danger to themselves or others and hold it for up to a year. The law was passed in response to the workplace shooting deaths of four people at the Connecticut State Lottery headquarters in 1998. The gunman, Matthew Beck, had a history of suicide attempts.
"This law has been used over 300 times since 1999 and there is no question that it has prevented tragedies from happening," said Mike Lawlor, undersecretary of the state Office of Policy and Management and a former legislator who worked on the gun seizure law. "I'm sure we can beef up the law even more, and I'm sure we will."
According to the state Office of Legislative Research, police in Connecticut applied for seizure warrants 277 times between 1999 and 2009 and confiscated more than 2,000 firearms. Records indicate the use of the warrants gradually increased over the years, ranging from 16 in 2003 to 42 in 2008.
But no gun confiscation records have been compiled since 2009, a situation that the state Judicial Branch is currently addressing.
Chris Duryea, a research attorney for the Judicial Branch, said his office is building a database to keep track of gun seizure cases, replacing an old paper-based system. It will take several months to complete the database, which will allow law enforcement personnellocal, state and federalto quickly access any prior gun seizure history when dealing with potentially dangerous people.
Additionally, said Duryea, this database will theoretically make it harder for people whose guns were seized in Connecticut from buying weapons in other states. (A separate database, also in the works, will track guns used in specific crimes.)
Work began on the databases last year, well before Ryan Lanza used his mother's semi-automatic rifle and handgun on Dec. 14 to kill 20 students and six educators at Sandy Hook Elementary School. No one is saying yet whether Lanza showed enough outward signs of mental instability to justify removing guns from the home where he lived with his mother. If he did, there is no record that any effort was made to have the guns seized.
While the database was in the works long before the Newtown shooting, the tragedy has "allowed some of our local parties in the court to become more supportive" of the database project, Duryea said. "It's timely," he said. "We're rolling up our sleeves to get it done."
Ruling out alternatives
Lt. Paul Vance, a Connecticut State Police spokesman, said officers take very seriously complaints about an unstable person having access to guns. In such cases, he said, the troopers will ask the person to turn over the firearms. "If you don't forfeit the firearms, we'll seize them and hold them until such time as they can be turned over to a responsible person," he said.
The troopers complete a report which is presented at a subsequent court hearing, at which a judge decides how long the guns should be heldup to a year.
Most of the calls come from spouses, he said, usually wives. The most common type of behavior in the complaint is that the person is suicidal.
State troopers aren't the only ones permitted to seize weapons. The law allows any two police officers, or a prosecutor, to get warrants and seize guns from anyone who poses a risk of injuring himself, someone else, or an animal.
The warrant can be sought only after the officers conduct an investigation to establish that probable cause of a risk exists, or after they rule out a reasonable alternative. An alternative, police say, would be if the person voluntarily agrees to surrender the weapon.
Before issuing a warrant, a judge determines whether violent acts were committed, whether a gun was displayed and whether a person has a history of unstable behavior.
In one notable case, a man was reported by his landlord to Berlin, Conn., police in 2004 for allegedly stating, "I am going to kill myself and take a few people with me." Police obtained a warrant and seized 18 guns from the man.
Four years later, a man called police in New Milford, Conn., "to report strange sightings, including trucks coming out of the ground and shape-changing trailers on his property." He threatened to shoot people in the trailers. Four guns were seized.
In the decade-long period tracked by the Office of Legislative Research, judges refused to grant the warrants only twice, a statistic that troubles advocates for gun owners.
Attorneys who have represented people trying to get their firearms back agree it can be difficult to fight a seizure warrant in court. Though the initial confiscation can be appealed, judges are reluctant to return weapons before the one-year maximum confiscation period has passed.
According to the state Office of Legislative Research, only in 22 instances between 1999 and 2009 were weapons returned more quickly than that. After a year, authorities either return the firearms to the former owner orafter a hearingdestroy them, if there's evidence that the former owner is still unstable.
Attorneys say most weapons are returned to their owners at some point.
'Cover your tail'
Rachel Baird is a solo practitioner in Torrington, Conn., who has handled dozens of gun seizures over the past decade.
"I definitely think you're going to see more" seizure warrants filed in the wake of the Newtown shootings, she said. "I think it's clear. It's going to affect the police because they're going to make more seizures, and it's going to affect the courts because the judges are going to be more reluctant to give people their guns back. It's a cover-your-tail kind of thing."
The problem is, the constitutional rights of those who own firearms legally get trampled on in the process of seizing the weapons before warrants get signed, she said. "This is essentially carving out an exception to the Fourth Amendment."
During the year after the confiscation, the gun owner can't legally buy or own another weapon, which impact other rights. Beyond that, Baird notes, after someone has been served a risk warrant and had a gun seized, they are no longer allowed to obtain a license to carry firearms outside of the home. "So you lose your right to defend yourself" when out in public, she said.
Baird is concerned that the law, as it exists now, is already ripe for abuse. "I have a recent case where a person said he wasn't [previously] concerned about my client's guns but he started to think about Newtown and then he called the police."
She also represents a woman, Barbara Doutel, in a federal lawsuit that claims Norwalk, Conn., police violated Doutel's constitutional rights to possess a firearm to protect her home when they seized her guns because of a complaint against her husband.
"From my perspective, if the government wants to take peoples' guns away, let's just say that's what they want to do, instead of hiding behind the seizure law," Baird said.
Other lawyers who handle gun cases are also bracing for increased use of the seizure law and other gun-related statutes. "I have noticed that firearms violations are already attracting more attention and efforts of state and federal law enforcement," said New Haven lawyer Jon Einhorn. "There's more scrutiny of anything involving guns than there was previous to Newtown."
Craig Fishbein, a Wallingford, Conn., lawyer who represents clients with gun-related matters in civil and criminal court, said he doesn't think the gun seizure law could have been used to prevent the Newtown shootings. "We're talking about stolen implements in this case," he said. "You could be the most sane person in the world and someone steals your gun and uses it. How do you prevent that?"
But like others, he's watching to see if the Newtown tragedy has any bearing on how the current laws are enforced. "I would hope that the [seizure] statute won't be used improperly," he said. "We have a system in place that appears to be operating appropriately and now all of this talk comes up as speculation because of the events of Dec. 14."
Jay Stapleton writes for The Connecticut Law Tribune, a Daily Report affiliate.