Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

Federal Court Finds Due Process Violation in NY County's Confiscated Gun Policy

Friday, August 28, 2015

Federal Court Finds Due Process Violation in NY County's Confiscated Gun Policy

This week, a federal court ruled that the Nassau County Sheriff’s Department could not rely on its “retention policy” to keep guns seized from a woman without providing her with a due process hearing. Panzella v. Nassau County, No. 13-cv-05640 (E.D. N.Y. Aug. 26, 2015). 

Christine Panzella’s ex-husband had obtained an ex parte order of protection against her in June of 2012. Such orders are authorized by the New York Family Court Act, and the statute authorizes the family court to include, in the order, a requirement that the person subject to the order surrender all firearms in his or her possession. The family court did not expressly order Ms. Panzella to surrender (or the police to confiscate) her firearms or otherwise invoke the surrender requirement, although the order did include a generic warning regarding the federal law (“It is a federal crime to . . . buy, possess or transfer a handgun, rifle, shotgun or other firearm while this Order remains in effect…”). As noted in the federal court decision, this disqualification applies to orders issued after actual notice is given to the affected person and after a hearing at which that person has an opportunity to participate, and would not apply to the ex parte order.

When police officers from Nassau County served the order on Ms. Panzella a few days later, they confiscated her guns. Although the ex-husband later received an extension of the protection order, he ultimately withdrew his petition, and the court terminated the proceedings and vacated the orders in March 2013. 

With these orders no longer in effect, Ms. Panzella made several requests that her two rifles and three shotguns be returned to her. The Nassau County police refused to do so based on a purported “legislative glitch” in which the family court, while authorized to order the confiscation of firearms, was not explicitly authorized to order their subsequent return when an order expired or was vacated. The police “retention policy” was not to restore firearms to their lawful owners unless and until the sheriff’s department was served with a court order directing that this be done. This policy not only places the burden of recovery on the owner whose property had been seized but requires costly and time-consuming litigation.

A previous lawsuit against Nassau County, Razzano v. Cnty. of Nassau, had already resulted in a finding that police officers violated a gun owner’s due process rights by failing to provide him with an adequate opportunity to recover rifles and shotguns, after these were confiscated based on a policy of doing so when the police believed a person to be dangerous. Subject to limited exceptions (when a gun is involved in a crime, for example), the police have to provide an owner with a prompt “post-deprivation” hearing. This has to take place before a neutral decision-maker, and the police have the burden of showing they are likely to succeed in any court action to maintain possession of the confiscated property. If the owner prevails at this hearing, the guns have to be returned.

Citing the Razanno decision, Ms. Panzella’s federal lawsuit against Nassau County claimed that the retention policy, and police refusal to hold a hearing once the orders were no longer in effect, violated her due process rights under the Fourteenth Amendment to United States Constitution. 

On August 26, the federal district court agreed. In ruling that Ms. Panzella should have been provided with a hearing, the court referred to the fact that other than the “unconvincing argument that a court order is required” for the return of the confiscated guns, the police failed to articulate “any basis for retaining” the firearms. The “legislative glitch” had no application because the family court orders did not actually mandate any surrender of guns, “let alone bar their return once the Extension Order expired.” In a footnote, the court similarly rejected the defendants’ indirect argument that they were not competent to determine whether to return confiscated guns, and noted that “the County’s police department makes these very determinations” in connection with pistol licensing decisions. Nassau County was directed to hold a due process hearing regarding the confiscated guns within 30 days.

IN THIS ARTICLE
New York Legal Gun Confiscation
TRENDING NOW
Washington: Anti-Gun Group Announces 2019 Agenda

Friday, December 7, 2018

Washington: Anti-Gun Group Announces 2019 Agenda

On December 5th, the Alliance for Gun Responsibility, a group backed by out-of-state elites, announced it will pursue its most extreme anti-gun legislative agenda to date during the upcoming 2019 Washington Legislative Session.

More Proof That Being a “Celebrity” Does Not Make You Smart

News  

Thursday, December 6, 2018

More Proof That Being a “Celebrity” Does Not Make You Smart

In a November 30 tweet, Tom Arnold, famous for being married to Roseanne Barr and making a few really bad movies, has proven that he knows nothing about guns, gun owners or firearm misuse.

Guns and Taxes

News  

Thursday, December 6, 2018

Guns and Taxes

David Hogg wants a federal tax on firearms and ammunition. He has repeatedly broached the idea, including multiple times on Twitter, and only sometimes suggests a use for the tax revenue. Hogg’s tweets on a ...

Checks and Balances? Massachusetts Executive Branch Flouts Court Orders on Firearms Licenses

News  

Thursday, December 6, 2018

Checks and Balances? Massachusetts Executive Branch Flouts Court Orders on Firearms Licenses

The U.S.’s republican form of governance is predicated on co-equal branches of government that check and balance each other in order to preserve individual liberty. The system does not work when one branch simply ignores ...

Surprise: Study Finds No Rise in Violent Crime Attributable to Adopting Right-to-Carry Laws

News  

Thursday, December 6, 2018

Surprise: Study Finds No Rise in Violent Crime Attributable to Adopting Right-to-Carry Laws

As we’ve noted recently, much research purporting to demonstrate connections between access to guns or right-to-carry laws and increases in crime is seriously flawed.  Often it's an attempt to curtail or eliminate Americans’ rights under the Second ...

Warning to New Mexico Gun Owners: Expect Unprecedented Attacks On Your Second Amendment Rights During The 2019 Legislative Session

Wednesday, December 5, 2018

Warning to New Mexico Gun Owners: Expect Unprecedented Attacks On Your Second Amendment Rights During The 2019 Legislative Session

While the New Mexico Legislature will not convene for its 60-day Regular Session until January 15, lawmakers can start prefiling bills on December 17. 

Levi’s Teams with Billionaire Michael Bloomberg to Attack Gun Rights

News  

Friday, September 7, 2018

Levi’s Teams with Billionaire Michael Bloomberg to Attack Gun Rights

Levi Strauss & Co. established its brand in the mid-19th century by selling durable clothing to working-class Americans. As Levi’s signature jeans gained popularity amongst a wider set in the middle of the last century, ...

Engineering Professor Shares Thoughts on Constitutional Law, Calls for Handgun Ban

News  

Friday, November 30, 2018

Engineering Professor Shares Thoughts on Constitutional Law, Calls for Handgun Ban

In a recent piece for the Bangor Daily News ironically titled, “Why banning handguns makes sense,” Associate University of Maine Electrical Engineering Professor George Elliott struggled to argue why the tools of self-defense have no ...

Anti-Gun Researchers Undermine the Anti-Gun Narrative

News  

Friday, November 30, 2018

Anti-Gun Researchers Undermine the Anti-Gun Narrative

We have good news from a joint effort between the Violence Prevention Research Program at the UC Davis School of Medicine and the Center for Gun Policy and Research at the Johns Hopkins University.  

Retired Anti-Gun Justice Reveals Attempts to Thwart Landmark Heller Decision

News  

Friday, November 30, 2018

Retired Anti-Gun Justice Reveals Attempts to Thwart Landmark Heller Decision

Few Supreme Court justices have been as avowedly opposed to the Second Amendment as John Paul Stevens, who retired from the high court in June 2010. Stevens wrote a lengthy dissent to the landmark decision ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.